Affirmed and Memorandum Opinion filed December 3, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00905-CV
STEVEN R. LEVY, Appellant
V.
CACH, L.L.C., Appellee
On Appeal from the County Civil Court at Law Number 1
Harris County, Texas
Trial Court Cause No. 1003903
MEMORANDUM OPINION
A debtor challenges a creditor’s collection judgment on the grounds that the
trial court erred in admitting business records reflecting the debt. The debtor
argues that inconsistencies in the business records showed they were untrustworthy
and therefore inadmissible hearsay. He further asserts that the trial court violated
his due-process rights by allowing the creditor’s counsel to testify in support of
admitting the business records. We conclude that the trial court did not abuse its
discretion in admitting the records at issue over the debtor’s “untrustworthiness”
objection. Moreover, the challenged statements of the creditor’s counsel were
arguments of counsel, not testimony, and the debtor did not preserve error as to the
due-process claim he asserts on appeal. Accordingly, we affirm the judgment of
the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/defendant Steven R. Levy, in 2003, co-signed Derrick
McDonald’s application for a credit card with U.S. Bank National Association ND
(the “Bank”). Levy understood that he was financially responsible for payment of
the amounts charged on the credit card, but Levy thought that the account was
closed in 2006, and disputed his liability for the outstanding balance. The Bank
sold this account to appellee/plaintiff CACH, L.L.C. in 2009, and CACH filed suit
against Levy asserting a claim for breach of contract. Humberto Zamora, an
employee of the Bank, executed an affidavit establishing the Bank’s sale of this
account to CACH and the account balance when the Bank sold the account to
CACH. In this affidavit, Zamora also stated that the original credit card
application for this account had been destroyed or was no longer accessible to him.
Tom Vigil, an authorized agent and records custodian of CACH, 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 the Zamora affidavit.
The case proceeded to a bench trial. During trial, CACH sought to introduce
into evidence the business-records affidavit and attached documents. Levy
objected to the admission of the documents on the grounds that the records are
hearsay not meeting the requirements of the business-records exception to the
hearsay rule because inconsistent information in the documents shows that they are
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not trustworthy. Specifically, Levy asserted 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. Levy also argued 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. The
trial court overruled Levy’s objection and admitted the evidence. The trial court
rendered judgment in favor of CACH in the amount of $8,514.53 in actual
damages as well as reasonable attorney’s fees.
II. ISSUES AND ANALYSIS
In his first appellate issue, Levy argues that the trial court erred in admitting
Vigil’s business-records affidavit over Levy’s objection. Under his second issue,
Levy complains that the trial court erred in allowing CACH’s counsel to testify
over Levy’s objection. Levy also asserts that the trial court violated his
constitutional right to due process by depriving him of the opportunity to confront
and cross-examine the business-records custodian regarding inconsistencies in the
business records.
A. Did the trial court err in admitting Vigil’s business-records affidavit
over Levy’s objection?
We review a trial court’s evidentiary ruling for abuse of discretion. See K-
Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam). A trial
court abuses its discretion if its decision is arbitrary, unreasonable, or without
reference to guiding principles. See id. An abuse of discretion does not occur
merely because the appellate court would have decided a discretionary matter in a
different way than the trial court. See Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 242 (Tex. 1985).
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In his objection, Levy asserted that the records contained in Vigil’s affidavit
were hearsay that did not meet the requirements of the business-records exception
to the hearsay rule because two inconsistencies in the documents shows that they
are not trustworthy. “‘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). Under the business-records
exception to the hearsay rule, the following is not excluded even though the
declarant is available as a witness:
A memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to
make the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified witness, or
by affidavit that complies with Rule 902(10), unless the source of
information or the method or circumstances of preparation indicate
lack of trustworthiness.
Tex. R. Evid. 803(6). 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. See Kirkpatrick v. LVNV Funding, L.L.C., No. 01-11-00382-CV, 2012
WL 1564294, at *8 (Tex. App.—Houston [1st Dist.] May 3, 2012, no pet.) (mem.
op). In his objection, Levy challenged only the last element, arguing that the two
discrepancies are circumstances indicating that the documents are not trustworthy. 1
The first alleged discrepancy is that Zamora testified in his affidavit that the
1
Levy does not challenge the other elements of the business-records exception.
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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. But, 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.
No document attached to Vigil’s affidavit purports to be the 2003 credit-card
application that Zamora said had been destroyed or was not accessible to Zamora.
The cardmember agreement attached to Vigil’s affidavit is a form agreement
showing the terms of the cardmember agreement. It does not purport to be an
agreement specifically between the Bank and Levy. The trial court did not abuse
its discretion by impliedly concluding that the circumstances indicated the
trustworthiness of the documents, despite this alleged discrepancy. See Truong v.
Dodeka, L.L.C., No. 14-10-00818-CV, 2011 WL 2693504, at *2–4 (Tex. App.—
Houston [14th Dist.] Jul. 12, 2011, no pet.) (mem. op) (holding that trial court did
not abuse its discretion by admitted documents under business-records exception to
the hearsay rule over appellant’s objection that two discrepancies showed that the
documents were not trustworthy).
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,
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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) (West 2013) (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); Kirkpatrick, 2012 WL
1564294, at *8. 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.2 See Kirkpatrick, 2012
WL 1564294, at *8; Truong, 2011 WL 2693504, at *2–4. Likewise, we find no
abuse of discretion in the trial court’s admission of the records at issue over Levy’s
“untrustworthiness” objection.3 Accordingly, we overrule Levy’s first issue.
2
Levy argues that the Simien case is not on point and urges this court not to rely upon it. See
Simien v. Unifund CCR Partners, 321 S.W.3d 235, 243–45 (Tex. App.—Houston [1st Dist.]
2010, no pet.). We do not rely on the Simien case in deciding this case.
3
In Ortega v. Cach, L.L.C., the court addressed the admissibility of hearsay statements in certain
paragraphs of affidavits dealing with the assignment and sale of the account; the court did not
address the admissibility of the billing statements or credit-card agreements. See 396 S.W.3d
622, 629–32 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The Ortega case is not on point.
See id.
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B. Did the trial court err in allowing CACH’s counsel to testify regarding
the final credit card statement over Levy’s objection?
Under his second issue, Levy complains that the trial court erred in allowing
CACH’s counsel to testify regarding the final credit-card statement over Levy’s
objection. Levy also asserts that the trial court violated his constitutional right to
due process by depriving him of the opportunity to confront and cross-examine the
business-records custodian regarding inconsistencies in the business records.
When CACH offered Vigil’s business-records affidavit into evidence at trial,
Levy asserted his “untrustworthiness” objection. In arguing this objection to the
court, Levy asserted that there were discrepancies in the final credit card statement.
In response, 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. Presuming for the sake of argument that
Levy preserved error on this issue, we conclude that his objection lacked merit
because CACH’s counsel was arguing Levy’s objection to the court rather than
giving testimony. See Cleveland v. Taylor, 397 S.W.3d 683, 693 (Tex. App.—
Houston [1st Dist.], 2012, pet. denied) (stating that an attorney’s arguments do not
constitute evidence); Brogan v. Brownlee, 358 S.W.3d 369, 371 (Tex. App.—
Amarillo, 2011, no pet.) (noting that comments or argument made by attorneys
during trial are not evidence).
As to Levy’s argument that the trial court violated his constitutional right to
due process, Levy did not voice this complaint in the trial court and thus failed to
preserve error. See Santos v. Comm’n for Lawyer Discipline, 140 S.W.3d 397,
404–05 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Lee v. City of Houston,
No. 14-05-00366-CV, 2006 WL 2254401, at *3–4 (Tex. App.—Houston [14th
Dist.] August 8, 2006, pet. denied).
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We overrule Levy’s second issue.
III. CONCLUSION
The trial court did not abuse its discretion in admitting the records at issue
over Levy’s “untrustworthiness” objection. Presuming for the sake of argument
that Levy preserved error on this issue, we conclude that the trial court did not err
in overruling Levy’s objection that CACH’s counsel was giving testimony. Levy
failed to preserve error in the trial court regarding his complaint that the trial court
violated his constitutional right to due process. Accordingly, we affirm the trial
court’s judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jamison and Donovan.
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