Citations
- 201 S.W.3d 332
Full opinion text
OPINION
ADELE HEDGES, Chief Justice.
Citibank (South Dakota) N.A. sued Joel Seidner for breach of contract in order to recover debt owed on a credit card account. Both parties filed motions for summary judgment. The trial court granted Citibank’s motion and denied Seidner’s motion. The final judgment awards actual damages in the amount of $10,142.45, plus attorney’s fees and post-judgment interest. On appeal, Seidner contends that the trial court erred in granting Citibank’s motion for summary judgment and denying his motion because (1) Citibank filed a deficient business records affidavit and (2) there is at least a fact issue regarding his affirmative defense under the federal Truth in Lending Act. We affirm.
Procedural History
Citibank sued Seidner for breach of contract for falling to pay credit card debt. In his answer, among other defenses not at issue in this appeal, Seidner raised a putative affirmative defense based on Citibank’s alleged violation of section 1642 of the Truth in Lending Act. 15 U.S.C.A § 1642 (1998). That section provides:
No credit card shall be issued except in response to a request or application therefor. This prohibition does not apply to the issuance of a credit card in renewal of, or in substitution for, an accepted credit card.
Citibank filed a motion for summary judgment, attaching exhibits that verified the existence of the account, Seidner’s delinquency, and the amount due. Seidner filed a response, along with his own motion for summary judgment, again raising the putative affirmative defense under section 1642. In support of that defense, he filed an affidavit in which he denied having made a request or application for the credit card account in question or having previously accepted a credit card for which the card in question was a renewal or substitution.
Citibank responded with an affidavit by Terri Ryning, in which she identified certain attached documents as Citibank’s business records. See Tex.R. Evid. 803(6) (business records exception to the hearsay rule). She further stated that the records reflected that Seidner applied for the credit card account over the telephone. Citibank additionally responded by arguing that a violation of section 1642 is not an affirmative defense barring a lawsuit to recover on credit card debt.
Seidner objected to Ryning’s affidavit as insufficient to support admission of the attached documents under the 803(6) exception; therefore, he also objected that the attached documents constituted hearsay. However, Seidner does not allege on appeal and the record does not reflect that he ever obtained a ruling on his objections. The trial court granted Citibank’s motion for summary judgment and denied Seid-ner’s motion.
Issues and Standards of Review
In three issues, Seidner contends that (1) Citibank filed a deficient business records affidavit; thus, the evidence attached thereto was inadmissible hearsay; (2) the trial court erred in granting summary judgment for Citibank because there is at least a fact issue regarding his affirmative defense under the Truth in Lending Act; and (3) the trial court erred in denying Seidner’s motion because he conclusively proved his affirmative defense. In considering these issues, we use the well-established standards of review for traditional summary judgments. See Tex.R. Civ. P. 166a; Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). We will first address Seidner’s contentions regarding the sufficiency of the business records affidavit and the admissibility of the exhibits attached thereto. We will then address Seidner’s affirmative defense based on section 1642.
The Affidavit