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Unifund v. Hawthorne

Court of Appeals of Texas, Fifth District, Dallas
Dec 17, 2009
No. 05-08-01574-CV (Tex. App. Dec. 17, 2009)

Summary

affirming debtor's no-evidence summary judgment when Unifund failed to offer a scintilla of evidence that it was the assignee of a creditor to whom he incurred a debt

Summary of this case from Rolen v. LVNV Funding, LLC

Opinion

No. 05-08-01574-CV

Opinion issued December 17, 2009.

On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. CC-08-03112-B.

Before Justices MORRIS, BRIDGES, and MURPHY.

Opinion By Justice MORRIS.


MEMORANDUM OPINION


This is an appeal from a take-nothing summary judgment in a lawsuit brought by Unifund CCR Partners against Darryl L. Hawthorne. For the reasons that follow, we affirm the trial court's judgment. Because the facts are well-known to the parties and the issues are well-settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4.

Unifund sued Hawthorne seeking monies due on an account. Hawthorne filed an answer and counterclaims. He then filed a no-evidence motion for partial summary judgment asserting there was no evidence that Unifund was either a creditor or assignee of a creditor to whom he owed a debt. Unifund filed a written response containing an "Affidavit of Indebtedness" from a Unifund representative as its sole evidence on the element challenged in Hawthorne's summary judgment motion. On June 5, 2008, both parties appeared for a hearing on the motion. At the hearing, the trial court granted Unifund's request for an additional thirty days for discovery.

On July 9, 2008, after another hearing on the motion, the trial court granted Hawthorne's partial summary judgment. A docket entry and the trial court's order indicate that Unifund did not appear at the July 9 hearing. Hawthorne then filed a nonsuit of his counterclaims and a motion for final summary judgment. Unifund filed a motion to set aside the partial summary judgment claiming it never received notice of the July 9 hearing. Unifund also filed a response to Hawthorne's motion for final summary judgment. On August 26, the trial court signed an order of nonsuit and a final summary judgment. This appeal followed.

The facts, procedural history, and issues in this case are remarkably similar to Unifund CCR Partners v. Perkins, No. 05-08-01576-CV, 2009 WL 4202635 (Tex. App.-Dallas November 25, 2009, no pet. h.). In addition, appellant has presented the identical six issues set forth in Perkins. The first two issues complain about Unifund's lack of notice with respect to the July 9 hearing. Unifund's third, fourth, and sixth issues relate to its lack of notice of the trial court's "ruling" on Hawthorne's motion for final summary judgment. We have reviewed these issues and conclude they lack merit in accordance with our analysis in Perkins. See id. at *2-3.

Unifund's fifth issue challenges the merits of the partial summary judgment. Like Perkins, the only evidence Unifund presented in response to Hawthorne's motion was the "Affidavit of Indebtedness." The affidavit states only that the subject account "was issued under the name of HSBC Bank Nevada NA and acquired from Platinum Capital Investments." The affidavit does not provide any evidence that Unifund was the original creditor or the assignee of the original creditor. At best, it suggests that someone acquired an account from Platinum that was issued under the name of HSBC Bank Nevada NA. See id. at *4. Moreover, there is no indication as to how Platinum acquired the account. Because Unifund failed to offer a scintilla of evidence that it is the assignee of a creditor to whom Hawthorne incurred a debt, the trial court did not err in granting Hawthorne summary judgment. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). We resolve Unifund's fifth issue against it.

We affirm the trial court's judgment.


Summaries of

Unifund v. Hawthorne

Court of Appeals of Texas, Fifth District, Dallas
Dec 17, 2009
No. 05-08-01574-CV (Tex. App. Dec. 17, 2009)

affirming debtor's no-evidence summary judgment when Unifund failed to offer a scintilla of evidence that it was the assignee of a creditor to whom he incurred a debt

Summary of this case from Rolen v. LVNV Funding, LLC
Case details for

Unifund v. Hawthorne

Case Details

Full title:UNIFUND CCR PARTNERS, Appellant v. DARRYL L. HAWTHORNE, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 17, 2009

Citations

No. 05-08-01574-CV (Tex. App. Dec. 17, 2009)

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