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RULE 508 DEBT CLAIM CASES Debt Claim Rules Rule 508.1 - incorporating Rules 500-507; Rule 508 applies if there is a conflict among the Rules governing small claims cases; Rule 508.2 – setting out requirements of a petition; and Rule 508.3 – governing default judgments; So – Back to Basics: What is a debt claim case?

It is a lawsuit brought to recover a debt. Rule 500.3

For purposes of the debt collection statutes in Texas, debt collection means an action, conduct, or practice in collecting, or in soliciting for collection, consumer debts that are due or alleged to be due a creditor;

Consumer debts are obligations, or alleged obligations, primarily for personal, family, or household purposes;

A debt claim case is filed by certain plaintiffs:

An Assignee - one to whom an assignment is made by sale or other transfer of the original owner’s interest in the debt; the assignee steps into the position of the assignor and has the right to enforce the debt; A Debt collector – Under Fair Debt Collection Practices Act, as applied to consumer debts, a “debt collector” is:

any person who uses any instrumentality of interstate commerce or the mails in a business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect debts owed or due or asserted to be owed or due another; or collectors working for professional collection agencies, and attorneys hired to collect debts;

Under the Texas Fair Debt Collection statute, a “debt collector” means a person who directly or indirectly engages in debt collection, or, in Texas, anyone trying to collect on a consumer debt;

A Collection agency A Financial institution

Financial institution includes a bank, savings association, or savings bank maintaining an office in Texas; FI 31.002 (Banks)

or, A Person/entity primarily engaged in the business of lending money at interest

Claim: A debt claim can be for no more than $10,000, excluding statutory interest and court costs, but including attorney’s fees, if any;

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Time Periods in Debt Claim Case: To compute time periods in a debt claim case: The day of the event triggering the period is excluded; Every day, including Sat., Sun., and holidays is then included; and The last day of the period is included;

But, if the last day is Saturday, Sunday, or holiday, the time is extended to the next business day; And, if the court closes before 5pm on last day, the time is extended to next business day;

Mailbox Rule: Remember: any document required to be filed by a given date, is considered timely filed if it is deposited in the US mail on or before that date, and received within 10 days of the due date, with a legible postmark affixed by the USPS; The judge may for good cause, extend any time period, except those relating to new trial and appeal; Rule 500.5

Rule 508.1 sets out the requirements for filing the petition in a debt claim case: The plaintiff must file a petition, in writing, together with a Justice Court Civil Information Sheet. In addition, to the usual information identifying the parties, the plaintiff must state whether the plaintiff consents to e-mail service of the answer and other pleadings or motions, and if so, provide an email address.

The plaintiff is also required to include:

(v) the amount of money damages for which the plaintiff is asking; (vi) a description and the value of personal property, if any, the plaintiff seeks to

recover; (vii) a description of any other relief requested; (viii) the basis for the plaintiff’s claim;

and, for a credit card account, revolving credit account, or open account: (x) the account name or credit card name; (xi) the account number (which may be masked); (xii) the date of issue or origination of the account, if known; (xiii) the date of charge-off or breach of the account, if known;

Charge off means that the account is delinquent and is viewed as a business loss rather than as an asset; a delinquent account is usually charged-off after 6 months; Most credit card issuers stop charging interest when they charge off a debt because continuing to charge interest would mean having to send monthly statements to cardholders under the Truth in Lending Act.

(xiv) the amount owed as of a date certain; and, (xv) whether the plaintiff seeks ongoing interest, including: the effective interest rate claimed; whether the interest rate is based on contract or statute; and the amount of interest claimed as of a date certain;

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[You may not be aware of Rule 21c (which doesn’t apply to Justice Courts, but probably should): This Rule provides that sensitive data – a DL number, passport number, SS number, tax ID number, or similar government issued ID number - must be redacted by using the letter “X” in place of each omitted digit or character, or by removing the data in such a way that indicates the data has been redacted; The filing party must retain an unredacted version of the document during the pendency of the case and appeal; The wording: “Notice: this document contains sensitive data” should be printed on the upper left corner of the document; Documents containing sensitive data that has not been redacted, cannot be posted on the Internet under Rule 21c;]

and for a promissory note or promise to pay a specific amount as of a date certain: (x) the date and amount of the original loan; (xi) whether the repayment of the debt was accelerated, if known;

When a lender invokes an acceleration clause, the borrower must immediately pay the unpaid balance of the loan’s principal, as well as any interest that accumulated before the lender invoked the acceleration clause.

(xii) the date final payment was due; (xiii) the amount due as of the final payment date; (xiv) the amount owed as of a date certain; and (xv) whether plaintiff seeks ongoing interest, including: the effective interest rate claimed; whether the interest rate is based on contract or statute; and the amount of interest claim as of a date certain; and for a debt that has been assigned or transferred: (x) that the debt has been transferred or assigned; (xi) the date of the transfer or assignment; (xii) the name of any prior holders of the debt; and (xiii) the name or a description of the original creditor.

A debt collector may not attempt to collect interest, or a charge, fee, or expense incidental to the obligation, unless the interest or incidental charge, fee, or expense is expressly authorized by the agreement creating the obligation or is legally chargeable to the consumer; A good pleading containing a request for interest will specify the basis of the interest charged, whether contractual or statutory, and if contractual, provide the contract and its terms. FI § 392.303

Basic pleading requirements are set out in Rule 502.2

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Elements of the cause of action. The most frequently filed debt claim cases are those based on credit card accounts. Generally, to prevail in a suit to recover credit card debt, the plaintiff must establish:

(1) a valid, enforceable contract; (2) privity between the parties; (3) performance by the issuer; (4) breach by the defendant; (5) injury to the issuer or holder cause by the breach;

An action to collect a credit card debt may be brought as an action on an open account. A credit card debt may be considered an open account because, under a credit card agreement, the terms of repayment remain subject to modification, and the parties exchange credits and debits until either party settles the balance and closes the account. A suit on a stated account is proper when (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement express or implied, between the parties fixes an amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. So the elements of an open account are: (1) transactions between the parties, (2) creating a creditor-debtor relationship through the general course of dealing, (3) with the account still being open, and (4) with the expectation of further dealing. The essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained as a result of the breach. A quantum meruit claim is proper in a credit card debt collection case where the evidence did not support the existence of a valid contract. A brief digression to discuss the identity of the parties. In debt claim cases, plaintiffs are usually business entities, and defendants are usually natural persons. Business entities may sue or be sued in their assumed names. It is wise for the judge, at some point in the proceeding, to require the plaintiff and the defendant, if appropriate, accurately to identify the business entity by the name of the person or entity who owns the business. This avoids any post-judgment issues of ownership of the judgment and the validity of assignments, if any. Proper identification of the parties also allows the judge to determine if the entity is being properly represented.

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Representation: In a debt claim case, an individual may represent himself/herself; or be represented by attorney; Business entities in particular, who are acting without an attorney, should be establish the authority of the person appearing on behalf of the entity. A corporation or other business entity may be represented by an employee, owner, officer, or partner of the entity who is not attorney; or a corporation may be represented by attorney; Rule 500.4 Occasionally, issues will arise as to a party’s right to sue or defend. For example;

Assumed Name Certificate: A person must file an assumed name certificate if the person regularly conducts business or renders a professional service in this state under an assumed name other than as a corporation, limited partnership, limited liability partnership, limited liability company, or foreign filing entity. BC 17.051 A corporation, limited partnership, limited liability partnership, limited liability company, or foreign filing entity must file a certificate under this subchapter if the entity: (1) regularly conducts business or renders professional services in this state under an assumed name; or (2) is required by law to use an assumed name in this state to conduct business or render professional services. BC 17.101

A person's failure to file an assumed name certificate as required does not impair the validity of any contract by the person or prevent the person from defending any action in any court of this state, but the person may not maintain an action in a court of this state arising out of a contract in which an assumed name was used until an original, new, or renewed certificate has been filed as required. In an action or proceeding brought against a person who has not complied with the assumed name filing requirements, the court may award the plaintiff or other party bringing the action or proceeding expenses incurred, including attorney's fees, in locating and effecting service of process on the defendant. BC 71.201

Forfeiture of corporation’s right to do business. Under TX 171.252. If the corporate privileges of a corporation are forfeited for nonpayment of franchise taxes, the corporation shall be denied the right to sue or defend in a court of this state; The Secretary of State may forfeit the charter, certificate, or registration of a taxable entity if the forfeited privileges are not reinstated within 120 days after the date that the privileges were forfeited. Courts have long interpreted the forfeiture provisions to preclude an entity only from filing suit after forfeiting its right to do business, not to prohibit it from continuing an action filed before its privileges were forfeited. A forfeiture of corporate privileges deprives a corporation of the capacity to sue but does not make a suit void, and the lack of capacity is waived unless challenged by a verified plea, which results in an abatement rather than a dismissal, in order to afford the corporation the opportunity to cure the defect.

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Service of Process: When the petition is filed, the clerk must issue a citation and deliver the citation as directed by the plaintiff. Rule 501.1. The clerk must keep a copy of the citation in the file.

In  debt  claim  cases,  defendants  are  usually  natural  persons  -­‐  individuals,  or  persons  doing  business  in  the  form  of  a  sole  proprietorship  or  partnership;    The   clerk   cannot   know   how   properly   to   direct   the   citation   if   the   plaintiff   does   not  adequately  describe  the  defendant  including  the  defendant’s  legal  nature.        The   citation   must   direct   the   person   authorized   to   serve   the   defendant   in   the   proper  manner.  For example: Individuals. Citation directed to individuals is effected by delivery directly to the person. Deliver this Citation to:

JOHN DOE, 1234 Main Street, Houston, Texas 77000

Sole Proprietorships. Citation directed to a sole proprietorship is directed to the owner of the business.

Deliver this Citation to: Deliver this Citation to: JOHN DOE, Individually and doing business ACME SERVICES, by serving its owner, as ACME SERVICES JOHN DOE 1234 Main Street 1234 Main Street Houston, Texas 77000 Houston, Texas 77000

Citation Return: The person effecting service must endorse on the citation the day and hour the citation was received, and must execute and return the citation without delay. The return may be endorsed on or attached to the citation. The return must include: • Cause number, case name, & court in which case filed • A description of what was served • Date and time process received for service • Person or entity served, and the address • For service on a business entity: the return must show that service was effected on the

business entity by serving the appropriate representative, designating the representative by capacity and name, and describing the manner and location of service.

• Date of service or attempted service • Manner of delivery of service or attempted service • Name of person who served or attempted service • Diligence used if citation is not served and where the defendant is to be found, if ascertained • Identification number of certified process server and expiration date of certification • Signature of person serving • Verification or signature under penalty of perjury • Any other information required by rule or law • The receipt if served by certified mail Rule 501.3

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The Return must be signed by the authorized person who served the citation. If a constable or clerk of the court, the return does not need to be verified. The Return always was, but with the “new” rules, is now more than ever, a significant document. You, as the judge, have an explicit duty to ensure that service was proper. (In my opinion, this duty is a judicial duty, and cannot be delegated.) If you have any question in your mind as to whether the service was proper, you may hold a hearing to review the Return, and if appropriate, the Return may be amended. Rule 503.1. Answer: The defendant’s answer must be in writing, and indicate whether the defendant consents to e-mail service, with a copy served on the plaintiff. The answer is due by the end of the 14th day after the day the defendant was served, unless the 14th day is a Saturday, Sunday or holiday, or the court closes before 5pm, when the answer is due on the next business day; No Pleading of Defenses Necessary. The defendant may answer a debt claim case by way of general denial, which will allow the defendant to raise any defense at trial. Rule 502.5

Defenses include the “former” verified defenses, and affirmative defenses, many of which are applicable in a debt claim case: e.g. I did not make this contract, or there is a defect of parties (Rule 93, verified

defense) Statute of limitations

Discharge in bankruptcy, and the like. (Rule 94, affirmative defenses) Payment (Rule 95) Prior to the new rules, limitations was an affirmative defense in Justice Courts. The creditor could sue on the debt after the limitations period expired, but the debtor could avoid a judgment by pleading limitations and proving that the limitations period has run. Now, under the justice court rules, a general denial is sufficient to put all defenses in issue; What happens when it is apparent to the court from the plaintiff’s pleadings that more than 4 years have elapsed since the cause of action on the debt accrued? Can the justice court, on its own, deny recovery based on statute of limitations in a default judgment situation?

Let’s briefly digress, once again, and talk about the statute of limitations and accrual of causes of action: In general, suits on a debt and accounts must be brought not later than 4 years after the date the cause of action accrues. The general statute of limitations is found in Civil Practice and Remedies Code §16.004.

A person must bring suit on a debt not later than four years after the day the cause of action accrues.

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If an action to collect a credit card debt is brought as an action on an open account, a person must bring an action on an open or stated account not later than four years after the day that the cause of action accrues. CV § 16.004(c).

For example, the date of the last payment may determine the accrual date for the purposes of the statute of limitations. A debtor may “restart” the period of limitations by making a payment, or acknowledging the debt in writing and agreeing to pay.

Stated account is a common law theory, allowing recovery for unpaid goods or services, without formal contract, the proof including a course of business dealings between the parties; it may include a credit card debt where the actual contract is not available; for example, a series of credit card statements showing transactions with defendant’s address; The cause of action accrues on the day that the dealings in which the parties were interested together cease.”

An action to enforce the obligation of a party to pay a promissory note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date. BC §3.118 If no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of 10 years. Not all promissory notes are negotiable instruments. A check, for example, is a type of negotiable instrument, but it is a contract. Not all promissory notes are governed by the 6 year statute of limitations. But when it applies, this 6 year statute of limitations is the more specific and would control over the general 4 year statute of limitations.

What is the cause of action – is it a contract, a debt, or an open account: Kaldis v. Crest Finance March 12, 2015 2015 WL 1120968; In this recent Harris County case, the debtor signed a business line of credit agreement; the debtor received funds on the line of credit using access checks or a debit card; the agreement provided for minimum monthly payments, with a late fee; the usual clauses for acceleration and termination were included; Debtor made timely payments until August 8, 2008; creditor continued to send monthly statements which included late fees, available line of credit which was reduced by the late fees, and outstanding balance, and new monthly payment due; There was no available credit reflected on the October 13, 2008 statement; the November statement notified the debtor that funds access was terminated; the January statement notified the debtor that the account was closed; the March 24, 2009 statement showed that the account had been charged off; The debt was assigned, and to an assignee who sued debtor on December 12, 2012, Debtor, claiming the cause of action was for a debt, asserted limitations – from the date of the first payment missed, September, 2008; assignee claimed the cause of action

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was for open account which accrued 4 years after the day that the dealings in which the parties were interested ceased. Debtor had the burden of proof on the limitations issue. Courts have held that the elements of an open account are:

(1) transactions between parties, (2) creating a creditor-debtor relationship through general course of dealing, (3) with the account still being open, and (4) with the expectation of further dealing;

Courts “should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged; The fact that the parties' dealings were governed by an express contract, the Business Line of Credit Agreement, does not convert this into an action for debt – and the courts will construe the petition liberally, and review the course of dealings between the parties to make a reasonable inference as to the nature of the cause of action; Finding that the debtor had the right to “revolve” the account, or continue to pay and again borrow, until the credit was terminated, the cause of action was more in the nature of an open account; an open account “allows for parties with frequent dealings to credit and debit the account without settling it.” Even after default, the obligation to pay remains. The court explained a charge off: when a business represents to the IRS that a debt is uncollectible and it will be shown as an expense against revenues to reduce overall income; it is an accounting mechanism following which interest does not accrue on the debt;

Dodeka, LLC v. Campos, 377 S.W.3d 726 (Tex.App.-San Antonio May 12, 2012) In another recent case, this one out of the San Antonio Court of Appeals, the assignee of a credit card issuer sued the debtor alleging breach of contract based on the debtor’s failure to make payments; debtor filed counterclaim under Fair Debt Collections Practices Act alleging that assignee brought action after expiration of 4-year statute of limitations; Debtor made the last payment on the account in an amount as required on December 23, 2005; debtor resumed making payments that were less than the minimum amount required, and made a final payment on September 15, 2006; The assignee purchased the account and did not file suit until March 15, 2010. Here, the issue was breach of contract vs. open account. The only cause of action plead by assignee was breach of contract; on appeal assignee urged the court to treat the cause of action as a suit on open account because, while not plead, the debtor impliedly consented to the case being tried as open account; It is undisputed that Campos made her last payment in the required minimum amount on December 23, 2005. However, she continued to make periodic payments until September 15, 2006, which was the date of her final payment. The suit was for breach of contract, and the court concluded that, at the earliest, the date of the last payment (September 15, 2006) determined the accrual date for purposes of the statute of

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limitations. Because this action commenced on March 15, 2010, Dodeka brought suit within the four-year statute of limitations.

The credit card agreement between Chase and Campos states: “We may consider you to be in default if any of [certain actions] occurs.... If we consider your account to be in default, we may close your account without notice and require you to pay your unpaid balance immediately. We may also require you to pay interest at the rate of two percent (2%) a month on the unpaid balance when we deem your account to be six or more billing cycles past due.” (Emphasis added.) Chase did not exercise its right to consider Campos in default when she failed to make her next minimum payment on January 22, 2006. Instead, the account remained open for her continued use and she continued to make payments until September 15, 2006.

Dodeka, LLC v. Campos, 377 S.W.3d 726 (Tex.App.-San Antonio May 12, 2012) Venue: Venue in a debt claim case is in the county and precinct in which the defendant resides, or in a suit on a written contract that promises performance at a particular place, in the county and precinct in which the contract was to be performed; Rule 502.4 However, under CV 15.092, a suit by a creditor on a contract for goods, services, or loans intended primarily for personal, family, or household use may be brought only in the county and precinct in which the contract was signed or in which the defendant resides. (This venue provision may not be waived in a contract for goods, services, or loans intended primarily for personal, family, or household use); If a suit is brought in a county or precinct in which the defendant does not reside, the pleading must affirmatively show that the suit comes within an exception provided by statute (CV Chapter 15, Subchapter E.

Transfer: • A defendant may move to transfer the case for improper venue no later than 21 days after

the answer is filed. A motion to transfer must contain a sworn statement naming the county and precinct of proper venue;

• The Court must hear the Motion, during which a witness may testify by telephone. • If the motion is granted, the written order must state the reasons for the transfer, and the

court to which the case will be transferred; • The court will send the papers of the case, together with a bill of costs; if the case is

transferred out of county, the transferee court must notify the plaintiff who has 14 days to pay the filing fees;

• If the case transferred within the county, or the motion is denied, the case may not be set for trial until at least 14 days after the ruling on the motion to transfer;

A party may challenge the court’s ability to provide a fair trial by the judge, or to get a fair trial within the precinct; The case may be transferred to any other justice of the peace with the written consent of all parties; Rule 502.4

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Trial Setting: After a defendant answers, the court will set the case for trial and provide the parties with at least 45 days notice; an earlier trial date may be set in the interest of justice; Rule 503.3 Request for jury trial. A jury trial must be demanded in writing and the jury fee of $22 paid no later than 14 days before the trial setting. (A party who is unable to pay the jury fee may file a sworn statement at the time a jury trial is requested.) Rule 504.1 An untimely jury demand waives the right to a jury trial, unless excused by the judge for good cause. A jury request by one party operates as to all parties. Rule 504.1 Pretrial Conference: Pretrial conferences can be scheduled at the request of a party, or on the court’s own directive; Pretrial issues include discovery, amendment or clarification of pleadings, admission of facts and documents to streamline the trial process; identification of undisputed facts; and of course, the possibility of mediation or settlement; Rule 503.6 Discovery: As in any other case filed in Justice Court, a request for discovery, if needed, must be presented to the judge for approval by written motion; The motion must be served on the responding party; No discovery request may be served on the responding party unless the judge issues a signed order allowing the discovery; Rule 500.9

Discovery imbedded in the petition, or served with the petition, is no longer acceptable in justice court, and in particular, the debt claim case. If you still have plaintiffs who serve discovery with their petition, you may choose to ignore the discovery and any response as made in disregard of the discovery rule.

Summary disposition. The summary disposition procedure is particularly suitable for debt claim cases – to dispose of all or part of a claim without a trial.

While Rule 508.3, section (d) provides that if the defendant files an answer the judge must set the case for trial, I don’t think that the way that rule is worded, precludes the court from considering a motion for summary disposition.

• A properly filed motion for summary disposition will set out all facts necessary to support the plaintiff’s claim, and have attached to the motion, copies of all documents supporting the claim.

• The defendant may, but is not required to file a sworn written response to the motion;

• Before taking action on the motion, a motion for summary disposition must be on file for at least 14 days;

• The judge must hold a hearing on the motion unless the parties have agreed to allow the judge to decide the motion and any response without a hearing;

• The judge decides the motion based on the completeness of the motion, all necessary facts and documents, and the response, if any;

After considering the motion, the judge: • May enter a judgment as to the entire case;

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• If the court finds that it cannot dispose of the entire case, the court may enter an order that specifies the facts that have been established and are no longer in dispute, and then direct the issues that will be heard at trial.

Judge may develop the case. The judge may also develop the case in a debt claim case. Rule 500.6 Default Judgment Rule 508 has built in certain procedural and evidentiary protections that require a plaintiff in a debt claim case to prove certain elements before a default judgment is rendered. Remember, under Rule 503.1, a judge may render default judgment without a hearing if the claim is based on a written instrument signed by the defendant, generally attached to the petition and served on the defendant, together with sworn statement by the plaintiff stating:

that this is a true and accurate copy of the written instrument, that the money claimed is owed, and

that all payments, offsets, or credits due have been accounted for.

However, Rule 508.3 specifically governs debt claim cases, and while similar, Rule 508.3 is different and will control default judgments in debt claim cases.

Rule 508.3 Default Judgment in a Debt Claim Case. If the defendant fails to appear or answer by the answer date in a debt claim case, the judge is required promptly to render a default judgment if the plaintiff provides the required proof of the amount of damages.

Reminder: Despite the requirement that default judgment be rendered promptly, the court may consider waiting until the 10th day to allow for defendant’s answer by mail.

So, how does the plaintiff prove damages to support a default judgment in a debt claim case? The Texas Rules of Evidence do not apply to a debt claim case. Rule 508.3 is in effect a rule of evidence for debt claim cases. It prescribes what is sufficient evidence in a default judgment situation. According to Rule 508.3, evidence of plaintiff’s damages must

(i) be attached to the petition and served on the defendant, or (ii) be submitted to the court after defendant’s failure to answer by the answer date.

Evidence of damages may be offered

(i) in a sworn statement, or (ii) by live testimony.

Remember: An unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law. The unsworn declaration must be in writing and subscribed under penalty of perjury;

My name is ___________, my date of birth is________, and my address is

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____________. I declare under penalty of perjury that the foregoing is true and correct.

Executed in ____County, State of ____, on _____________. CV §132.001 Evidence of damages must show: That the account or loan was issued to the defendant; That the defendant is obligated to pay the account or loan; That the account was closed or defendant breached the terms of the account or loan; That all payments, credits, and offsets have been applied to the account or loan; That a specified amount was due and owing on the account or loan on a date certain; So, these required elements of damages may be submitted to the court (i) by a sworn statement made a part of the petition, or (ii) a sworn statement, or at a hearing by a live witness. If the evidence includes documents, that documentary evidence may be considered if it is attached to a sworn statement made by: The plaintiff, or a representative of the plaintiff; A prior holder of the debt, or a representative of the prior holder of the debt; (An assignor, prior assignee, debt collector or collection agency) The original creditor, or a representative of the original creditor,

(A financial institution, or a person primarily engaged in business of lending money at interest)

and the statement includes the following: • the documents were kept in the regular course of business; • it was the regular course of business for an employee or representative with knowledge of

the act recorded to make the record or to transmit information to be included in the record;

• the document was created at or near the time or reasonably soon thereafter; and • the document attached is the original or an exact duplicate of the original;

Hearing or not. If the plaintiff submits written evidence of damages, assuming that the judge finds the evidence sufficient, the judge may enter a default judgment without a hearing and should do so to avoid undue expense and delay. If court finds evidence insufficient, assumes that the court will notify plaintiff of denial of entry of default judgment; Otherwise, the plaintiff may request a default judgment hearing at which the plaintiff must appear to prove damages; the plaintiff’s appearance may be in person, or by telephone or other electronic means;

Under a portion of Rule 503.l, with permission of the court, a party may appear at a hearing by means of telephone or other electronic communication system. There does not appear to be the same requirement for the judge’s permission in Rule 508.3;

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In reviewing a sworn statement, the judge may find that the sworn statement as to damages lacks trustworthiness because:

(i) the source of the information provided to support damages lacks trustworthiness, or (ii) the method or circumstances of preparation of the sworn statement indicates a lack of

trustworthiness. The judge may not, however, reject a sworn statement if the only reason for the rejection is that it is not made by the original creditor. The judge may not reject a sworn statement if the only reason for the rejection is because the documents made the basis of the sworn statement were created by a third party and subsequently incorporated into and relied upon by the plaintiff in its business.

If the judge rejects evidence by sworn statement, in particular, the judge should immediately notify the plaintiff so that the plaintiff can schedule a hearing to prove up damages.

While the Rules of Evidence don’t apply, you should be aware that effective September 1, 2014, the Supreme Court adopted amendments to Rule of Evidence 902, allowing for self-authentication of certain evidence – meaning that no extrinsic evidence of authenticity (evidence other than the affidavit) is required in order to admit the documents of a regularly conducted business activity. The form promulgated by the Supreme Court states:

1. I am the custodian of records of _______ [or] I am an employee or owner of ___________ and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities. 2. Attached are ____ pages of records. These are the original records or the exact duplicates of original records. 3. Based on the regular practices of ________, the records were:

a. made at or near the time of each act, event, condition, opinion, or diagnosis set forth in the records; b. made by, or from information transmitted by, persons with knowledge of the matters set forth; and c. kept in the course of regularly conducted business activity.

4. It was the regular practice of the business activity to make the records. And, CV §18.002 offers a similar form of affidavit to prove the cost and necessity of services: Each of these affidavits meets the requisites of Rule 508.3, as to documents used to support evidence of damages.

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What does the evidence look like:

• If proof of damages is attached to the petition, there should be a verification that attests to the information, or

• if not attached to the petition, there should be a sworn statement filed after the defendant fails timely to file an answer, attesting to the information provided, or

• specific information can be presented at a hearing requested by plaintiff after the defendant fails timely to file an answer:

The information provided should include: That the account or loan was issued to the defendant; That the defendant is obligated to pay the account or loan; That the account was closed or defendant breached the terms of the account or loan; That all payments, credits, and offsets have been applied to the account or loan; That a specified amount was due and owing on the account or loan on a date certain; In expanded form, testimony regarding an account or loan might show:

• That plaintiff is the owner and holder of the account or loan, or how plaintiff acquired rights in the account or loan, and a copy of the assignment, bill of sale, or other transfer of the account or loan;

• That the account or loan was issued to the defendant, including a reference to the contract language identifying the defendant;

• That the defendant is obligated to pay the account or loan, including a reference to the contract language delineating the obligation to pay;

• That the defendant accepted the benefit of the account or loan, i.e. plaintiff or original creditor extended credit or made a loan to defendant;

• That the defendant breached the contract, by failing to pay as required; • That the account was closed or charged off, or the loan was accelerated, in response to

the default by defendant; • That a certain balance was due at time of default or last payment, or charge off, and that

defendant continues to fail and refuse to pay the balance; • The interest accrued on the debt, with a reference to the contract provisions authorizing

the charging of interest and the rate of interest, and the dates and rates of accrual of interest, if appropriate;

• That all payments, credits, and offsets were allowed to the defendant; and as to the documents attached,

• That the contract and other evidence of amount due are true and correct copies of the original of the documents;

• That the documents were kept in the regular course of the plaintiff’s business, and it was in the regular course of that business for an employee or representative with knowledge of the transaction to make the record or to transmit the information to be included; that the record was created at or near the time or reasonably soon thereafter. and as to attorney’s fees,

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• That demand for payment of the amount owing was made more than 30 days prior to filing suit;

• That payment for the amount due has not been tendered by the defendant; Plaintiff’s attorney may also submit an affidavit supporting an award of attorney fees to which the plaintiff may be entitled. To recover attorney's fees for a breach of contract claim under Section 38.001 of the Texas Civil Practice and Remedies Code, (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented. “The rule in Texas is presentment of the claim must be made at least 30 days before trial, even if made after the suit is filed. Considerations for the trustworthiness of a sworn statement: the following are some the recent cases construing credit card debt; some are not reported but the legal principles are relevant.

1. County Real Estate Venture v. Farmers and Merchants Bank of Long Beach (Tex.App.-Houston [1st Dist.] 2-12-2015 2015 WL 591646) Creditor Bank sued defendant to recover credit card debt based on breach of contract. Bank was required to prove: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach by the defendant; and (4) damages sustained as a result of that breach; With respect to the amount owed on the account, the Bank’s affiant stated: “After allowing all offsets, credits and payments, there is due and owing Bank on the contract $63,390.83. Summarizing prior holdings, the court showed examples of insufficient proof: (i) a cardholder agreement with no evidence of calculations used to reach the claimed unpaid balance; (ii) a creditor failed to direct attention to any document in the record supporting the entire claimed amounts; (iii) a creditor did not establish contract damages because it did not show how it reached the claimed damages amount nor offer monthly statement showing charges, payments, or interest calculations; (iv) a lender’s failure to include any document establishing the agreed terms of a bank loan, was insufficient to establish the loan; The court gave an example of sufficient proof:

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That the evidence included a credit card agreement, methodology used by credit card company, detailed explanation of cost of credit, and billing statements that included past due amounts owed; and statement by the credit card company that the company sent monthly statements to borrower, each statement set out debts and credits, and reflected amounts due; and affiant attested to a specific amount of damages after payments and offsets; Here, although the bank attached an account page that contained a current balance owed and “charged-off amount,” it was devoid of a listing of the charges, or any payments or offsets. Although the Bank’s affiant avers that an attachment to the affidavit included the contract at issue and that the Bank “performed all conditions of the contract and all conditions precedent to recovery on the contract,” the attachments do not contain any statement of account showing past-due charges, or any calculation for the Bank's claimed outstanding balance including offsets and credits. The attachment also shows one page of a credit card application, but does not contain the credit agreement or other document establishing the agreed terms. And the bank failed adequately to establish liability and damages;

2. Davis v. American Express Bank, FSB 2014 WL4414826 (Tex.App.-Austin 8-29-2014); Davis failed to make payments on his AMEX card between December 2007 and February 2008 on an outstanding debt of over $58,000, and then made no payments after March 2008; When the card was cancelled, he owed $64,643.54. AMEX sued for the credit card balance, claiming breach of contract, account stated, quantum meruit, open account, and promissory estoppel; AMEX submitted the affidavit of its records custodian, to support its breach of contract claim; Davis claimed the affidavit was inadmissible hearsay. Although hearsay is generally inadmissible as evidence, records kept in the regular course of business are exceptions to the hearsay rule. Davis claimed the copies of the records violated the best evidence rule. But, a duplicate record is admissible to the same extent as an original unless the authenticity of the original is questioned or it would be unfair to admit the duplicate rather than the original. TRE 1002.1003. American Express produced a copy of the standard cardholder agreement reflecting its terms and billing statements showing Davis's acceptance of the terms through his use of the credit card. Evidence of the credit card agreement, although not the original agreement, that reflected the terms and cardholder’s acceptance of those terms by continued use of the credit card, was sufficient evidence;

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The appellate court found the evidence sufficient to establish the debt and support the judgment;

3. Ortega v. CACH, LLC, 396 S.W. 3d 622 (Tex.App.-Houston [14th Dist.] 2013).

In this case a collections company, as assignee, sued Ortega for breach of contract for failing to repay a debt under a consumer credit agreement originally made by MBNA, which later became Bank of America. CACH purchased the account with an outstanding balance of $13,741.73; CACH submitted a business record affidavit signed by West, as custodian of records for CACH, made with personal knowledge based on review of the documents provided by Bank of America, that balance owed was $13,741.73, and demand for payment was made more than 30 days prior to filing suit, and no payments were made; Attached to the affidavit were: Affidavits of claim and certificate of debt from Bank of America;

Another affidavit, the Plummer affidavit, which stated that the agreement and account was sold and transferred to CACH on 8/18/2009;

Monthly statements for November, 2008, September, 2008, and July, 2009; Statement of provisions of card member agreements; Ortega argued that the Plummer affidavit supporting the assignment was conclusory. However, a person may testify to a sale and assignment without providing any documentary evidence. Plummer could testify on personal knowledge that the account was transferred to CACH without providing any supporting documentation. (as opposed to, for example, CACH is the owner and holder of the account – conclusion, unsupported by facts such as when the account was purchased;) The West Affidavit, stating that demand for payment was made more than 30 days prior to filing suit, was offered as a business record of CACH, but it is clear from the face of the document that it was prepared for the purpose of litigation. Lack of trustworthiness is most frequently found when the record was prepared in anticipation of litigation-the purpose for its creation lies outside the business’s usual operations; The affidavit has the heading of a pleading and refers to CACH and Ortega as “Plaintiff” and “Defendant,” respectively. The fact that West created the affidavit only after CACH's initial collection efforts were unsuccessful shows that it was neither created nor relied upon in the course of CACH's regular debt-collection activities. Therefore, this document, which was made in anticipation of litigation, was not admissible under the business-records exception. In the business-record affidavit, to which the Plummer Affidavit is attached, West testifies that the documents from MBNA are “maintained by individuals who have a business duty to make entries in the records accurately at or near the time of the event that they record.” But the Plummer Affidavit is dated September 9, 2010, and asserts that Bank of America sold Ortega's account to CACH on August 18, 2009. A record of a sale made more than a year after a sale takes place is clearly not “at or near the time of the event” that it purports to record. The fact that the affidavit is dated about two and a half

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months before CACH filed suit and over a year after the alleged date of sale suggests that it was created in anticipation of litigation rather than in the course of a regular business activity, which casts doubt on its trustworthiness.

4. Ainsworth v. CACH LLC (Tex.App.-Houston [14th Dist.] 2012 2012 WL 1205525

CACH sued Ainsworth to recover a credit card debt. CACH had acquired the debt from Chase Bank. Ainsworth asserted every defense, including statute of limitations. CACH submitted a business-records affidavit signed by CACH employee Hwang on November 9, 2010, with several attachments incorporated. In this affidavit, Hwang states:

I am the custodian of the records of Plaintiff and am familiar with the Plaintiff's business processes. Business records are kept and maintained in the ordinary course of Plaintiff's business. The Records are made and maintained by individuals who have a business duty to make entries in the Records accurately at or near the time of the event that they record, or reasonably soon thereafter, by or from information transmitted by someone with personal knowledge of the event or act. In addition, it is Plaintiff's regular business practice to obtain, integrate, and rely upon documents prepared by the original creditor of the account at issue. Plaintiff relies upon the accuracy of such documentation in its day to day business activities and such documents are considered Records of the Plaintiff. The records consist of both hard copy information and electronic information that is generated, stored and maintained by the original creditor in accordance with accepted standards in the industry by individuals that possess the knowledge and training necessary to ensure the accuracy and reliability of the records. I know from my experience in reviewing such records that those records are made and maintained by individuals who have a business duty to make entries in the records accurately at or near the time of the event that they record. Plaintiff relies upon the accuracy and reliability of said records in its day to day business.

Attached to the affidavit: Bill of sale from Chase to CACH, showing the account number, debtor, SSN, DOB, original creditor, and charge off date;

Another affidavit by Hwang, dated August 6, 2009, is attached to the business-records affidavit. In this affidavit, Hwang states:

She is custodian of the records of CACH, LLC., has personal knowledge based upon the review of the documentation provided by the original creditor; that, after all just and lawful offsets, payments, and credits have been allowed, the total balance on the account of $4,567.07 is just and true and is due and owing; The total amount of $4,567.07 is based on the amount due at the time of placement of the account with plaintiff and post placement interest of $0; The records attached hereto are the original or exact duplicates of the original.

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Demand for payment of the just amount owing Plaintiff by Defendant was made upon the Defendant more than thirty (30) days prior to filing of plaintiff's original petition, and payment for the just amount owing has not been tendered.

Ainsworth challenged the admission of the business-records affidavit and supporting documentation on numerous grounds, including hearsay and that the supporting documents were unreliable and not trustworthy.

An exception to the hearsay rule exists for business records if the offering party shows (1) the records were made and kept in the regular course of business; (2) the business kept the records as part of its regular practice; (3) the records were made at or near the time of the event they contain; and (4) the person making the records or submitting the information had personal knowledge of the events being recorded.

Finally, third-party documents can become the business records of an organization and, consequently, admissible if the records are (1) incorporated and kept in the course of the testifying witness's business; (2) the business typically relies upon the accuracy of the contents of the documents; and (3) the circumstances otherwise indicate the trustworthiness of the documents.

The business-records affidavit, described above, meets these criteria. Hwang stated that she is the custodian of records for CACH and that it is CACH's “regular business practice to obtain, integrate and rely upon documents prepared by the original creditor of the account at issue.” She further averred that CACH relies on the accuracy of the documents in its day-to-day business activities and that the records are made and maintained by individuals who have a duty to keep the record accurately at or near the time of the event that they record. Finally, one of the documents attached to the business-records affidavit is the “affidavit of sale,” which is notarized. Such a notarized document is self-authenticating under the Texas Rules of Evidence. See Tex.R. Evid. 902(8). In this document, an authorized agent of Chase Bank, N.A., stated that Chase had acquired Ainsworth's account from Washington Mutual Bank, sold it to CACH in December 2008, and that the amount due on the account at the time of the sale was $4,567.07. Chase's failure to keep accurate records could result in criminal or civil penalties. See Tex. Fin.Code Ann. § 392.304(a)(8) (prohibiting misrepresentations of amount of consumer debt); id. § 392.402 (providing for criminal penalties for violations of chapter 392 of Texas Finance Code); see also Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692e(2)(a) (prohibiting misrepresentation of amount of debt); id. And § 1692 l (providing for administrative enforcement of Administrative Debt Collection Practices Act). These circumstances otherwise indicate the trustworthiness of the Chase Bank documents.

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5. Uribe v. Pharia, LLC 2014 WL 3555529 (Tex.App.-Corpus Christi 2014). Pharia filed suit against Uribe for breach of contract in justice court in Hidalgo County. In County Court on appeal, Pharia offered into evidence the Dodd affidavit and thirty-two pages of Pharia's general business records.

Dodd stated that the facts were within her personal knowledge and are true and correct; That PHARIA was the current owner of, and/or successor to, the obligation and she serves as the custodian of the records. That she is familiar with how these records have been prepared and maintained; That her responsibilities include storage, retrieval and review of general business records kept in the normal course of business and that she was familiar with the official electronically stored business records regarding the credit account purchased by PHARIA by written Bill of Sale.

Attached to this affidavit were 32 pages of records from PHARIA. That the records were in an electronic format from the previous seller and she personally examined the records. The electronic records show that the Defendant last made a payment on this account on January 3, 2007 and ceased to make any further payments. That the seller provided the balance at the time of the sale. That is was the regular course of business, and it was within the regular course of business of PHARIA for an employee with knowledge of the act, event, condition, opinion, or diagnosis that was recorded, to make this record or to transmit the information to be included in this record. That the record was made at or near the time of the act, and the records are the originals or exact duplicates of the originals.

The records revealed that the originator of the account sold Defendant's credit card account. All transactions are described in detail in a written Bill of Sale attached to this Affidavit. That the electronic records for the account indicate a total balance owed of $4,285.31, and based on my review of the business records, all payments and offsets have been applied to the account.

That PHARIA L.L.C. owns the account and is attempting to enforce its remedies for breach of the cardholder agreement (the contract for this account); That her personal examination of these records revealed Defendant did not pay the amount charged and borrowed which is a violation of the contract; That the balance due on the account is the amount of PHARIA L.L.C's actual damages for the contract; That PHARIA had to engage legal counsel to enforce its rights against Defendant under the contract.

Attachments included: (1) cardholder agreement in reduced-size print that was illegible; (2) an “Affidavit of Unifund CCR Partners (“Unifund”), that attests to the following information

stored in Unifund's records: • Uribe's account originated with Bank of America, N.A., on 09/06/2005;

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• Unifund Portfolio A, LLC, an affiliate of Unifund, purchased the account from FIA Card Services, N.A., on 10/28/2008;

• Unifund Portfolio A, LLC subsequently assigned the account to Unifund; • Unifund transferred the account to Pharia on 05/29/2009; • At the top of the affidavit, the following last four digits of account numbers are referenced:

“5848, a.k.a, 1763, a.k.a., 8651.” • That there is “due and payable” from Uribe, the principal amount of $2,789.70 plus interest

... at the rate of 28.99% per annum.” (3) A “Bill of Sale and Assignment of Loans” followed by a printout of electronic information

noting Uribe's account ending in 5848, showing a remaining balance of $2789.70 and a last payment date of 01/03/07;

(7) several statements or notices from Bank of America to Uribe and several pages of what appear to be terms or pages of a card member agreement, also in Spanish;

(8) an August 5, 2009 “demand letter” to Uribe (9) a “Department of Defense Manpower Data Center” status report showing that Uribe was not

in military service. Uribe argued that a party, like Pharia, offering the business records of a second entity must have personal knowledge of the second entity's record-keeping practices.

In July 2010, the Houston First Court first held that a third party debt collector's employee can authenticate credit card account documents that it purchased despite having no personal knowledge or any other showing of reliability as to the credit card company's recordkeeping practices.” See Simien v. Unifund CCR Partners, 321 S.W.3d 235, 244–45 (Tex.App.-Houston [1st Dist.] 2010, no pet). Uribe also notes that the Simien holding and its reasoning have been adopted by other courts San Antonio, Beaumont, Austin, Dallas; After this complete recitation of the evidence presented, and this holding, the Court did not reach the debtor’s argument that this holding should not apply to third party debt collectors seeking to authenticate records created by other entities – because the court found that there was no evidence of proving the terms of the contract; Uribe argued that the only evidence of a valid contract was 2 pages of a copy of a Bank of America cardholder agreement in print so small that the copies are illegible. There is no evidence of Uribe’s specific obligations under the agreement, or that Uribe agreed to a specific rate of interest, as set out in the Affidavit. There is no evidence explaining how the $2,789.70 balance became the $4,285.31 balance claimed by Pharia. The several account statements and several pages of text that appear to be a card member agreement were in Spanish, and Pharia provided no translation of the documents. The Court of Appeals found that, although there is evidence of a credit-card agreement of some kind, there was no evidence proving the terms of that agreement or Uribe's intent to be bound by a specific agreement.

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6. Levy v. Cach LLC (Tex.App.-Houston [14th Dist.] 2013 WL 6237273 12-3-2013).

Levy, a co-signer of credit card debt, claimed business records affidavit of assignee of the debt should not have been admitted because two inconsistencies in the affidavit showed it was not trustworthy. For CACH, Vigil executed a business records affidavit, attempting to prove that the documents attached to the affidavit were business records of CACH. Included in these documents was a form of the Bank’s cardmember agreement and an affidavit executed by Zamora of USBank that the original agreement had been lost or destroyed, and providing the balance due on the account. The first alleged discrepancy is that Zamora testified in his affidavit that the original credit-card application for this account had been destroyed or was no longer accessible to him, yet a cardmember agreement dated 2006 was attached to Vigil's affidavit. The trial court reasonably could have concluded that there was no discrepancy. Vigil did not testify that the form of cardmember agreement attached to his affidavit was the original credit-card application for this account. The second alleged discrepancy made the subject of Levy's objection is that Zamora testified that the balance Levy owed when the Bank sold the account was $8,514.53, yet the last credit-card statement contained in the business records allegedly showed a zero balance. Though the last credit-card statement does contain conflicting information, it does not reflect a zero balance. The prior statements in the business records are consistent and reflect the balance on the account at the end of each billing period. The balance prior to the final statement was $8,328.93. Part of the final statement reflects a balance of $8,328.93, which had accrued $185.60 in interest. The sum of these two amounts is $8,514.53. But, other parts of this statement contain data that conflicts with the foregoing information. In these conflicting portions, there are statements that (1) the previous balance is $7,385.60; (2) there are no new finance charges; (3) the outstanding balance is $7,200; (4) there is no revolving line of credit; (5) there is no minimum payment due or past due; and (6) payments and credits have been made in the amount of $8,328.93 based upon reversal of late payment fees, a credit for interest, and a “credit adjustment charge off.” This statement contains conflicting statements and inaccuracies regarding the amount owed by Levy. Nonetheless, a failure by the Bank to keep accurate records of its customers' credit-card debt could result in criminal or civil penalties. See Tex. Fin.Code Ann. § 392.304(a)(8) (prohibiting misrepresentations of the amount of a consumer debt); id. § 392.402 (West 2013) (providing for criminal penalties for violations of chapter 392 of the Texas Finance Code); We conclude that the trial court did not abuse its discretion by impliedly determining that the circumstances indicated the trustworthiness of the documents, despite these issues with the final statement. We find no abuse of discretion in the trial court's admission of

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the records at issue over Levy's “untrustworthiness” objection. Accordingly, we overrule Levy's first issue.

In response to Levy’s objection, CACH's counsel twice asserted that this statement was “the charge-off statement.” Each time, Levy objected that CACH's counsel was testifying. The trial court stated that it thought that CACH's counsel was responding to Levy's objection rather than testifying.

Third-party documents can become the business records of an organization and, consequently, admissible under rule 803(6), if (1) the documents are incorporated and kept in the course of the testifying witness's business; (2) the business typically relies upon the accuracy of the contents of the documents; and (3) the circumstances otherwise indicate the trustworthiness of the documents.

7. Wakefield v. Wells Fargo Bank (Tex.App.-Houston [14th Dist.] 2013 WL 6047031 11-14-

2013). Wells Fargo sued Wakefield to recover a credit card debt; Wells Fargo submitted the affidavit of Rogers, a paralegal for Wells Fargo, stating that Wakefield is the owner of a Wells Fargo consumer credit card customer agreement for a personal line of credit, that Wakefield accepted the account, that the account is in default, and that demand for payment was made; a copy of Wells Fargo's credit-card account agreement was attached; Also included were Wakefield's monthly credit-card statements; and the affidavit of an attorney for Wells Fargo, attesting to legal fees. Wakefield argues the trial court erred by admitting Rogers's affidavit because it is missing certain evidentiary support: monthly statements showing card use from July 2002 to December 2002, and banking records demonstrating when changes were made to the terms of the account agreement. In other words, Wakefield argues Rogers's affidavit is conclusory, and incompetent summary-judgment proof, because it does not set forth the factual support for breach of contract. This court has not located, any case requiring that the credit card company produce every monthly credit-card statement or documentation of changes made on the account throughout its history. Moreover, the December 2002 statement shows a previous balance of zero, so there is no indication that prior statements are relevant to the amount Wakefield currently owes. The statements in Rogers's affidavit are sufficiently supported by a copy of the account agreement and recent credit-card statements.

Wakefield argues summary judgment was improper because Wells Fargo did not prove two elements of its breach-of-contract claim: the existence of a valid contract and damages. For a contract to be valid, there must be: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) a communication that each party consented to the terms of the contract; (5) execution and delivery of the

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contract with an intent it become mutual and binding on both parties; and (6) consideration. Although Wakefield's name is not specifically identified on the account agreement, the agreement states: “This Customer Agreement and Disclosure Statement ... constitute your Agreement with us that covers your credit card account.” The agreement also defines “you” and “your” as referring “to each cardholder.” Rogers's affidavit and supporting monthly credit-card statements establish that Wakefield is a cardholder.

Wakefield argues Wells Fargo did not prove she accepted the terms of this particular agreement because these terms are different than her 2002 agreement and because they “are impossible to even comprehend.”

Wells Fargo's evidence demonstrates Wakefield accepted the agreement and any subsequent amendments to the terms when she used the card. Wells Fargo’s evidence demonstrates all of the necessary elements of the claim;

8. Rodriguez v. Citibank (Tex.App.-San Antonio 2013 WL 4682194 8-30-2013).

Citibank specifically alleged Rodriguez had requested to open a credit card account with Citibank and that an account bearing number “XXXXXXXXXXXX7174” had been opened in her name. Citibank stated that when it referred to the account number, it was referring to “the full and complete account number assigned to the credit card account by the bank.” However, for purposes of the petition, it had redacted all but the last four numbers. Citibank claimed Rodriguez had failed to pay the amounts due and owing on the credit card, prompting the suit. After Rodriguez answered, Citibank moved for summary judgment on its account stated claim, seeking recovery of $19,464.80. Citibank submitted the affidavit of Cogan. Rodriguez contends the affidavit lacked personal knowledge and included numerous conclusory statements. In his affidavit, Cogan avers the statements in his affidavit are based on his personal knowledge and his review of the business records described within the affidavit. Cogan states he is authorized to make the affidavit on behalf of Citibank and is employed by Citibank or an affiliate. Cogan asserts he is a “Document Control Officer” and his duties include acting as a custodian of records with respect to accounts owned by Citibank. He further states that as a custodian, he has “knowledge of, and access to, account information and records” concerning Rodriguez's account, which is the subject of the lawsuit. He then avers the account records attached to his affidavit contain Rodriguez's name, address, account number, and account history, including charges made, interest, fees assessed, and payments or credits received. A mere blanket recitation of personal knowledge of the matters contained in an affidavit is insufficient. The affiant must explain how he has personal knowledge. An affiant's position or job responsibilities can qualify him to have personal knowledge of facts and establish how he learned of the facts. An affiant's personal knowledge may be acquired not only through his position, but also through his specifically described job duties. The requirement of personal knowledge is satisfied when an affiant identifies the position he

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holds and describes his job responsibilities so that one can reasonably assume he would be particularly situated to have personal knowledge of the facts within his affidavit.

Cogan has demonstrated personal knowledge of the facts stated within the affidavit, i.e., Rodriguez's relationship with Citibank and the events relating thereto. Cogan asserts that as the “Document Control Officer” for Citibank, his duties include acting as a custodian of records with respect to accounts owned by Citibank. He states that as a custodian, he has “knowledge of, and access to, account information and records” concerning Rodriguez's account.

Conclusory statements in affidavits are insufficient to establish the existence of a fact in support of a motion for summary judgment. An affidavit that is merely a sworn statement of the allegations in a pleading or that simply paraphrases statutory language is conclusory and lacks probative force.

The statements are logical conclusions based on facts stated within Cogan's affidavit regarding Rodriguez's account as well as information contained within the account documents attached to Cogan's affidavit. Cogan states in his affidavit the account documents contain Rodriguez's name and billing address, her account number, the history of the account, which includes charges, interest, and fees assessed, minimum payments due, and the total outstanding balance. The documents, when considered together, provide a factual basis for each statement challenged by Rodriguez.

Plaintiff is entitled to judgment. If the plaintiff proves damages, the judge must render judgment for the amount proven. If not, the judge must render judgment in favor of defendant. Of course, if a defendant appears or files an answer before the judgment is signed, the judge must set the case for trial. Judgment: The relief awarded must be supported by the pleadings. A judgment for damages in excess of the amount pleaded is in error, even though the evidence of damages may support a greater amount than originally plead. The court might allow an amendment of the pleadings depending on the circumstances of the case. In connection with a default judgment, the plaintiff must submit a Military Status Affidavit;

It is not appropriate to submit to the Court a military status affidavit at the time of filing the lawsuit. The military status affidavit is to be submitted at the time of the default judgment;

Also in connection with a default judgment, the plaintiff must also submit a Certificate of last known address;

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All judgments should be noted in the court’s docket, and the judge should then render judgment accordingly. Judgments must be in writing, and at a minimum, should recite the appearances of the parties, together with their respective representatives or attorneys of record; It should recite the correct name of the party in whose favor the judgment is rendered, and the correct name of the party against whom the judgment is rendered; It should state the amount of money to be recovered; and should provide for the recovery of court costs, as appropriate; The judgment should also state the post judgment interest rate. The judgment should be signed by the judge and should state the date signed. If the case is tried by the jury, the judgment must also include the verdict of the jury. If the jury’s verdict is contrary to the law or the evidence, the court may enter judgment notwithstanding the verdict. Rule 505.1 Notice of Judgment. Rule 503.1 When a default judgment is signed, the clerk must immediately mail written notice of the judgment to the defendant at the last known address provided by the plaintiff. The notice must state: The number and style of the case, and the court The names of the parties in whose favor and against whom the judgment was rendered; The date the judgment was sigend; The debt claim judgment is subject to a motion for new trial, and motions to set aside or to reinstate; Rule 505.3 And, of course, the judgment may be appealed by the plaintiff by filing a bond or making a cash deposit in the amount of $500; and by the defendant by posting a bond or making a cash deposit in an amount equal to 2 x the amount of the judgment. The bond and cash deposit must be payable to the appellee conditioned on the prosecution of the appeal to effect and payment of any judgment and all costs rendered against it on appeal. A party wishing to appeal who cannot post a bond or pay costs, may appeal by filing a sworn statement of inability to pay. The appeal must be perfected within 21 days after the judgment is signed, or the motions to reinstate, set aside, or for new trial are denied. (If the judge has not ruled on a motion to set aside, to reinstate, or for new trial, the motion is automatically denied at 5:00 p.m. on the 21st day after the day the judgment was signed.) Judgments in debt claim cases may be enforced in the same manner as judgments in county and district courts. Rule 505.2