Richard G. Ortega v. Cach, LLC
396 S.W.3d 622
| Tex. App. | 2013Background
- CACH, LLC sued Richard G. Ortega to recover an alleged Bank of America/MBNA credit-card debt assigned to CACH.
- Ortega claimed there was no valid assignment and counterclaimed under the Texas Fair Debt Collection Practices Act.
- Trial proceeded as a bench trial; Ortega testified about address history and card usage, acknowledging the amount $13,741.73 but memory gaps about notices and statements.
- CACH offered a 21-page Plaintiffs Exhibit 1, including West, Pellicciaro, and Plummer affidavits and attached documents, as a business-records package to prove ownership/assignment.
- Ortega objected to the portions dealing with sale/assignment as hearsay and not best evidence; the trial court admitted the affidavits in full, and the court then entered judgment for CACH for the balance and fees.
- On appeal, Ortega challenges the hearsay/best-evidence ruling, the sufficiency of evidence that the account was assigned, and the basis for the calculated debt balance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of West, Pellicciaro, and Plummer affidavits under the business-records exception | CACH: affidavits fall within Rule 803(6) business records | Ortega: affidavits contain hearsay and are not properly within the exception | trial court erred; affidavits not admissible as business records for the contested portions |
| Sufficiency of evidence that Ortega's account was assigned to CACH | CACH: assignment established by affidavits and records | Ortega: no valid assignment proven | evidence legally insufficient to prove assignment; issue sustained? (court overruled Ortega’s challenge on this point but reversal rests on hearsay error) |
| Preservation/foundation of calculations for finance charges and debt balance | Ortega's challenge not preserved; court overruled this issue as not properly raised at trial |
Key Cases Cited
- Bay Area Healthcare Gp., Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) (standard for evidentiary abuse of discretion)
- Interstate N. P’ship v. State, 66 S.W.3d 213 (Tex. 2001) (review of evidentiary error using harm2)
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (timeliness and context for preserving objections)
- Prudential Ins. Co. of Am. v. Black, 572 S.W.2d 379 (Tex. App.—Hou. [14th Dist.] 1978) (affidavits’ use as business records; foundational limits)
- CA Partners v. Spears, 274 S.W.3d 51 (Tex. App.—Hou. [14th Dist.] 2008) (conclusion without factual support is insufficient)
- Ryland Group v. Hood, 924 S.W.2d 120 (Tex. 1996) (affidavits must provide underlying facts supporting conclusions)