WITHDRAWN 10/13/10
REISSUED 10/13/10
IN THE
TENTH COURT OF APPEALS
No. 10-09-00314-CV
ROBERT D. SHIPLEY,
Appellant
v.
UNIFUND CCR PARTNERS,
Appellee
From the 87th District Court
Freestone County, Texas
Trial Court No. 08-294-A
MEMORANDUM OPINION
Robert Shipley appeals from the entry of a judgment against him for a debt on a
credit card account. He complains that the trial court erred by not dismissing the suit
against him because Unifund CCR Partners lacked standing to bring the suit because
they did not own the debt and therefore the court lacked subject matter jurisdiction.
Shipley also complains that the evidence was legally insufficient for the trial court to
have granted a judgment against him and in favor of Unifund CCR Partners because
there was no evidence that Shipley’s debt had been assigned to Unifund CCR Partners.
Because we find no error in the trial court’s judgment, we affirm the judgment of the
trial court.
Standing
Shipley contends that Unifund CCR Partners did not own the account in
question, and therefore, they lacked standing to bring the suit against him. Citibank
South Dakota, N.A. sold the account to Unifund Portfolio A., LLC. Unifund Portfolio
A, LLC then assigned its rights to collect the account to Unifund CCR Partners, but
retained the title and ownership of the account. In his brief to this Court, Shipley does
not complain about the sale of the account from Citibank to Unifund Portfolio A, but of
the assignment from Unifund Portfolio A to Unifund CCR Partners.
Standing, a necessary component of subject-matter jurisdiction, is a
constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). Whether a party has standing to
pursue a claim is a question of law reviewed de novo. Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 928 (Tex. 1998).
Standing refers to a party’s justiciable interest in a controversy. See Nootsie, Ltd.
v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996); Town of Fairview
v. Lawler, 252 S.W.3d 853, 855 (Tex. App.—Dallas 2008, no pet.). Only the party whose
primary legal right has been breached may seek redress for an injury. Nauslar v. Coors
Brewing Co., 170 S.W.3d 242, 249 (Tex. App.—Dallas 2005, no pet.). Without a breach of
a legal right belonging to that party, that party has no standing to litigate. Cadle Co. v.
Lobingier, 50 S.W.3d 662, 669-70 (Tex. App.—Fort Worth 2001, pet. denied). In
Shipley v. Unifund CCR Partners Page 2
reviewing standing on appeal, we construe the petition in favor of the plaintiff, and if
necessary, review the entire record to determine if any evidence supports standing. See
Tex. Air Control, 852 S.W.2d at 446.
An “assignment” is simply a transfer of some right or interest. See Pagosa Oil &
Gas, L.L.C. v. Marrs & Smith P'ship, No. 08-07-00090-CV, 2010 Tex. App. LEXIS 938 at *10
(Tex. App.—El Paso Feb. 10, 2010, no pet. h.) (citing University of Texas Med. Branch at
Galveston v. Allan, 777 S.W.2d 450, 452 (Tex. App.—Houston [14th Dist.] 1989, no writ).
As such, an assignment is a contract between the assignor of a right and an assignee,
who receives the authority to assert that right. See id. at 453.
When an assignee holds a contractually valid assignment, that assignee steps into
the shoes of the assignor and is considered under the law to have suffered the same
injury as the assignors and have the same ability to pursue the claims. Southwestern Bell
Tel. Co. v. Mktg. on Hold Inc., 53 Tex. Sup. Ct. J. 322, 2010 Tex. LEXIS 159 (Tex. 2010)
(citing Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 572 (Tex. 2001).
The assignability of a cause of action is generally freely permitted, but
assignments may be invalidated on public policy grounds. In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004) (“As a rule, parties have the right to contract
as they see fit as long as their agreement does not violate the law or public policy.”);
State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 707-19 (Tex. 1996) (listing cases
invalidating assignments); RESTATEMENT (SECOND) OF CONTRACTS § 317(2)(b) (1981) (“A
contractual right can be assigned unless . . . the assignment is forbidden by statute or is
otherwise inoperative on grounds of public policy.”). Shipley has not raised an issue
Shipley v. Unifund CCR Partners Page 3
that any public policy ground recognized by the Texas Supreme Court exists in this
case.
When we review the entire record, including the petition filed by Unifund CCR
Partners, Unifund Partners’ responses to Shipley’s motion for no-evidence summary
judgment, and the evidence presented at trial where Unifund CCR Partners alleged that
it was the assignee of Shipley’s account and was entitled to sue to collect the debt, we
conclude that there is some evidence which supports the trial court’s finding that
Unifund Partners had standing to sue to collect the debt. See Sprint Communications Co.,
L.P. v. APCC Services, Inc., ___ U.S. ___, 128 S. Ct. 2531, 2541-43, 171 L. Ed. 2d 424 (2008)
(assignee for collection may properly sue on the assigned claim); Eaves v. Unifund CCR
Partners, 301 S.W.3d 402, 405 (Tex. App.—El Paso 2009, no pet.) (internal citations
omitted). We overrule issue one.
Legal Sufficiency
Shipley complains that the evidence was legally insufficient to establish that his
account was legally assigned to Unifund CCR Partners because he contends that the
evidence introduced at trial did not establish the ownership of the account by Unifund
CCR Partners. In analyzing a legal sufficiency or no-evidence issue, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 821-
22 (Tex. 2005). A no-evidence challenge may be sustained only when (1) the record
discloses a complete absence of a vital fact, (2) the court is barred by rules of law or
evidence from giving weight to the only evidence offered to prove a vital fact, (3) the
Shipley v. Unifund CCR Partners Page 4
only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the
evidence conclusively establishes the opposite of a vital fact. Id. at 810.
The only evidence offered at trial was documentary. Unifund CCR Partners
offered a business records affidavit with attached records into evidence. Shipley
objected on multiple grounds. The trial court sustained the objection as to hearsay for
all portions of the affidavit other than the required business records affidavit questions.
See TEX. R. EVID. 902(10). The business records affidavit contained a statement by the
records custodian that the attached records were related to Shipley’s account, that they
were kept in the regular course of their business, that it was in the regular course of
their business to keep the records, that the records were made at or near the relevant
time, and that they were originals or exact duplicates of the originals. A portion of the
records contained copies of billing records sent from Citibank to Shipley demonstrating
the account activity, as well as a copy of the bill of sale from Citibank to Unifund
Portfolio A and the assignment from Unifund Portfolio A to Unifund CCR Partners.
The bill of sale from Citibank to Unifund Portfolio transfers all interests to the
“Accounts described in Section 1.2 of the Agreement…” but that section is not attached
to the agreement. The assignment from Unifund Portfolio to Unifund Partners is even
less specific. It merely mentions assigning its right in “the Receivables,” but never
specifies what those Receivables are. Unifund CCR Partners was less than thorough in
establishing its right to this claim. However, because we indulge all reasonable
inferences in support of the judgment in a legal sufficiency review, we find that there is
Shipley v. Unifund CCR Partners Page 5
more than a scintilla of evidence that Shipley’s account was properly assigned to
Unifund CCR Partners. We overrule issue two.
Conclusion
We conclude that Unifund CCR Partners had standing to file suit against Shipley
and that the evidence was legally sufficient to establish that the account was lawfully
assigned to Unifund CCR Partners. We affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed June 16, 2010
[CV06]
Shipley v. Unifund CCR Partners Page 6
Robert D. Shipley v. Unifund CCR Partners
Combined Opinion