Melissa Avdeef v. National Auto Finance Company ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00344-CV
MELISSA AVDEEF APPELLANT
V.
NATIONAL AUTO FINANCE APPELLEE
COMPANY
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Melissa Avdeef appeals from the trial court‘s summary judgment
in favor of Appellee National Auto Finance Company (NAFC) on its claims
against Avdeef for breach of contract and foreclosure of its security interest and
against Avdeef on her counterclaims. Avdeef, who is proceeding pro se, argues
in five issues that the trial court erroneously exceeded the four corners of the
1
See Tex. R. App. P. 47.4.
contract in awarding NAFC damages and possession of the vehicle, that NAFC is
no longer in business, that the trial court erred by ―prejudging the case by
statements made on the court record,‖ by allowing NAFC ―to violate multiple state
and federal laws,‖ and by ―allowing [NAFC] to make false, misleading[,] and
contradicting statements,‖ and that the trial court failed to consider NAFC‘s
credibility. Because we hold that the trial court did not err by granting summary
judgment, we affirm.
NAFC sued Avdeef to recover the balance due on a motor vehicle retail
installment contract entered into by Avdeef. NAFC asserted that in 2004, Avdeef
purchased a vehicle from Meador Chrysler/Plymouth and at the same time
executed the retail installment contract, which gave Meador a security interest in
the vehicle. NAFC further claimed that it had purchased the contract from
Meador and that Avdeef was now in default of the contract. It asserted a claim
for breach of contract and sought to foreclose on its security interest. NAFC also
stated that it was the registered assumed name for Nuvell National Auto Finance
LLC.
Avdeef filed a counterclaim asserting that NAFC was ―not a permissible
company to do business in the State of Texas‖ and was no longer the lien holder.
She further asserted that NAFC had violated the federal Fair Debt Collection
Practices Act (FDCPA).
After a hearing, the trial court granted summary judgment for NAFC. The
judgment ordered that NAFC recover from Avdeef $19,792.32 plus interest and
2
attorney‘s fees, that NAFC was awarded foreclosure on its security interest in the
vehicle, and that Avdeef take nothing on her counterclaims. Avdeef then
appealed.
We review a summary judgment de novo.2 We consider the evidence
presented in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could and disregarding evidence
contrary to the nonmovant unless reasonable jurors could not.3 We indulge
every reasonable inference and resolve any doubts in the nonmovant‘s favor. 4 A
plaintiff is entitled to summary judgment on a cause of action if it conclusively
proves all essential elements of the claim.5
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant‘s
claim or defense.6 The motion must specifically state the elements for which
2
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
3
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
4
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
5
See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60
(Tex. 1986).
6
Tex. R. Civ. P. 166a(i).
3
there is no evidence.7 The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact.8
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion.9 We review a no-
evidence summary judgment for evidence that would enable reasonable and fair-
minded jurors to differ in their conclusions.10 We credit evidence favorable to the
nonmovant if reasonable jurors could, and we disregard evidence contrary to the
nonmovant unless reasonable jurors could not.11 If the nonmovant brings
forward more than a scintilla of probative evidence that raises a genuine issue of
material fact, then a no-evidence summary judgment is not proper.12
7
Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
8
See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425,
426 (Tex. 2008).
9
Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
10
Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005)).
11
Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006)).
12
Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
4
Avdeef‘s brief does not conform to the appellate briefing rules. She divides
her ―Statement of Facts‖ into sections by issue, and in each section, she includes
argument pertaining to that issue.13 She then includes a three-page ―Summary
of the Argument‖ that, rather than summarizing the arguments relating to her
issues, asserts that NAFC should be held to the rule of law but does not
reference any law or legal principle by which NAFC should be held accountable.
The ―Argument‖ section of her brief consists of three pages of numbered
paragraphs. Avdeef does not clearly indicate which paragraphs relate to which
of her issues, and some of the paragraphs do not appear to have any relevance
to her issues.
A pro se litigant is held to the same standards as licensed attorneys and
must comply with rules of procedure.14 But, in light of our obligation to liberally
construe briefs,15 we address Avdeef‘s arguments to the extent that they are
13
See Tex. R. App. P. 38.1(g) (providing that the appellant‘s brief ―must
state concisely and without argument the facts pertinent to the issues or points
presented‖).
14
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978);
Williams v. Capitol Cnty. Mut. Fire Ins. Co., 594 S.W.2d 558, 559 (Tex. Civ.
App.—Fort Worth 1980, no writ).
15
See Tex. R. App. P. 38.9.
5
adequately briefed and that we can understand them. To the extent that any of
her arguments are unintelligible and inadequately briefed, they are overruled.16
In her first issue, Avdeef argues that the trial court improperly allowed
NAFC to exceed the terms of the contract. She contends that the contract did
not allow NAFC to both foreclose on the vehicle and be awarded damages.
Avdeef argues that the trial court improperly allowed NAFC to
wander outside of the four corners of the contract, and thus
improperly granted [NAFC] possession of the motor vehicle, the
value of the contract, damages, and legal fees, the law limits the
collection of contractual goods to the limits specified within the
contract, you get one or the other, the money owed, or the vehicle,
then in turn you have to sue for the balance owed AFTER the sale of
the vehicle, not double of everything, and the vehicle to boot, thus
this judgment was wholly improper.
To address what we interpret as an argument that the trial court granted NAFC
relief not authorized by the contract, we examine the summary judgment
evidence offered by NAFC in support of its breach of contract claim, as well as
any evidence offered by Avdeef in reply.
Regarding its breach of contract claim, NAFC produced a copy of the sales
contract, which provided the following terms:
a total loan amount of $29,341.44, to be repaid in seventy-two
monthly payments of $407.52;
an annual percentage rate of 12.95 percent;
16
See Tex. R. App. P. 38.1(i); Gray v. Nash, 259 S.W.3d 286, 294 (Tex.
App.—Fort Worth 2008, pet. denied) (deciding that issues were waived because
of inadequate briefing).
6
a late charge of five percent of the scheduled payment for any
payment not received within fifteen days of its due date; and
in the event that Avdeef failed to pay all she owed when the final
payment became due or if she did not pay all she owed if the seller
demanded payment in full under the contract, an interest rate set at
the higher rate of eighteen percent per year or the maximum rate
allowed by law.
The contract further provided that if Avdeef defaulted on the contract, the seller
had the right to accelerate the loan and require her to pay the remaining balance
all at once. It further provided that ―[i]f we [the seller] hire an attorney who is not
our salaried employee to collect what you owe, you will pay any reasonable
attorney‘s fees plus any court costs and disbursements, as the law allows.‖
The contract defined default to include Avdeef‘s failure to pay any amount
when due. Finally, the contract granted to the seller a security interest in the
vehicle and provided that upon default, the seller had the right to repossess the
vehicle, sell it to pay allowed expenses, and use any remaining amount to reduce
the amount Avdeef owed. Avdeef did not challenge these terms of the contract,
either in the trial court or on appeal.
The contract shows on its face an assignment to ―National Auto Finance
Co.‖ NAFC included with its summary judgment evidence an assignment from
Nuvell Credit Company LLC d/b/a/ National Auto Finance Company to Nuvell
National Auto Finance LLC, dated December 1, 2006. NAFC also asserted that
7
it was the registered assumed name for Nuvell National Auto Finance LLC,17 and
it filed as summary judgment evidence the assumed name certificate from the
Texas Secretary of State showing that NAFC was the registered assumed name
of Nuvell National Auto Finance LLC.
NAFC also produced a copy of Avdeef‘s payment schedule, showing that
the last payment made by Avdeef was on September 26, 2007, and that as of
that time, after applying that payment, the remaining balance owed totaled
$12,951.70. This schedule shows that at the time of the assignment to Nuvell
National Auto Finance LLC, Avdeef was not in default. Avdeef did not challenge
this evidence, either in the trial court or on appeal.
The only part of Avdeef‘s response to NAFC‘s summary judgment motion
that related to NAFC‘s breach of contract evidence was a paragraph in which she
stated,
[T]hey are attempting to double dip by suing for more than double
what the original contract balance was, but are asking for the vehicle
to be seized also. This is wholly improper for them to collect on both
the contract, and the collateral, and explains why they are now
improperly and fraudulently renaming the contract as ―damages‖ in
order to perpetrate this fraud upon the court.
The terms of the contract, however, allowed the seller to accelerate the loan
upon default, apply an interest rate of at least eighteen percent to any
outstanding balance, charge late fees, and repossess the vehicle if the full
17
See Tex. Bus. & Com. Code Ann. §§ 71.001–.203 (West 2009)
(providing for the registration of assumed business or professional names).
8
amount was not paid. Thus, from the plain terms of the contract, even if the
amount owed after late fees and interest became more than the amount originally
loaned, Avdeef was still obligated to pay. The seller also had the right to
repossess the vehicle, sell it, apply the sale proceeds to its costs, and use any
amount left to reduce the amount that Avdeef owed. In contrast to what Avdeef
argued in the trial court and now on appeal, the remedies sought by NAFC were
allowed under the contract.
Avdeef also asserts, without any citations to authority, that NAFC originally
pursued ―this legal matter‖ ―as a debt, and not a contractual obligation, and
[NAFC‘s] legal counsel identified [itself] as debt collectors, with the written
statement that binds them to follow the rules and regulations of the federal Fair
Debt Collections Practices Act . . . for which they have repeatedly violated.‖ She
contends that the trial court set an improper precedent that will allow debt
collection firms to no longer be held to the contract they are attempting to
enforce. She argues that ―you foreclose on a debt, you enforce on a contract, yet
[NAFC] did not sue on a debt.‖
We are unclear what specific legal argument Avdeef intended to make by
these statements. To the extent that Avdeef argues that a party may not
foreclose on collateral in a claim based on a contract and can only pursue that
remedy by suing ―on a debt,‖ she is mistaken.18 To the extent that she argues
18
See, e.g., Tex. Bus. & Com. Code Ann. § 9.601 (West 2011) (providing
that after default, a secured party has the rights provided in that subchapter as
9
that if a company makes attempts to collect on a debt owed under a contract
prior to filing a lawsuit, it may no longer sue for breach of that contract, she has
cited no law in support of that position. And we note that the law often
encourages parties to settle disputes prior to litigation.19 We overrule Avdeef‘s
first issue.
In Avdeef‘s second issue, she argues that the trial court erred by allowing
NAFC to perpetrate a fraud upon the court, as NAFC
is and was publicly shut down by the parent corporation and,
therefore, is no longer in business, and failed to sue under a
receiver, trustee, or the parent corporation who now is the proper
lien holder, but yet is not a party to this civil action now before this
court.
She argues that not only does NAFC not have standing to sue, but it has
perpetrated a fraud upon the district court, forcing her to bring this issue ―before
the ‗Tarrant County Court of Appeals‘ to correct this injustice.‖20
NAFC‘s no-evidence motion for summary judgment asserted that there
was no evidence that it was not permitted to do business in Texas or that NAFC
well as the rights provided by agreement of the parties and providing that a
secured creditor may foreclose on a security agreement).
19
See, e.g., Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001, 38.002 (West
2008) (providing that a party may be awarded attorney‘s fees in a breach of
contract action, but only if the party previously presented the claim to the
opposing party).
20
We take this reference to mean this court, as this court sits in Tarrant
County, and there is no court in Texas known as the Tarrant County Court of
Appeals.
10
was not the owner of the debt and the contract. In response, Avdeef argued that
GMAC had shut down NAFC. In support of this assertion, Avdeef attached an
article from a website stating that Nuvell Credit Company LLC and National Auto
Finance Co. ceased originating loans as of January 7, 2009. The article stated
that Nuvell is a subsidiary of GMAC, ―the captive lender for General Motors
Corp.,‖ and quotes a GMAC spokesperson as saying that ―we are not doing
subprime financing at this time‖ and that ―[w]hen the economy improves, we‘ll
have the capacity to start again through GMAC.‖ The article further quotes the
spokesperson as saying that National Auto Finance had originally been set up to
provide funding for non-GM dealers and that ―[t]he part of that group that remains
is moving over to GMAC.‖
A corporate entity must take particular steps to dissolve and cease to
exist.21 The article states that NAFC would no longer be originating loans and
that employees of that group would be transferred to a different group, but it does
not state that NAFC had been wound up and no longer existed as an entity.22
NAFC produced sufficient summary judgment evidence to show that it had been
assigned the seller‘s rights under the contract and to therefore demonstrate its
21
See, e.g., Tex. Bus. Orgs. Code Ann. § 11.052 (West 2011) (providing
procedures for the winding up of a domestic entity).
22
See, e.g., id. (providing that while winding up its business, a domestic
entity shall cease to carry on its business and shall collect its property and
perform any other act required to wind up its affairs, and that it may prosecute a
civil action during that time); § 21.502 (setting out the requirements for a
domestic entity to voluntarily wind up).
11
standing to sue on the contract, and Avdeef did not produce evidence to refute its
evidence of standing. To the extent that Avdeef‘s claims were a challenge to
NAFC‘s capacity, this article was not enough raise a fact issue to defeat NAFC‘s
no-evidence motion. Accordingly, the trial court granted no-evidence summary
judgment for NAFC. Because Avdeef failed to provide sufficient competent
summary judgment evidence to show that NAFC was no longer in business or
was not in good standing with the secretary of state, we cannot say that the trial
court erred.
After the trial court rendered judgment on September 27, 2010, Avdeef
filed with the trial court copies of correspondence she had mailed to counsel for
NAFC. With this correspondence, Avdeef included copies of a certification from
the Texas secretary of state that as of September 2010, Nuvell National Auto
Finance LLC was delinquent in filing its franchise tax report and was not in good
standing with that office. This document was not before the trial court when it
rendered judgment, and therefore we cannot say that the trial court abused its
discretion by not considering it.23 We note, however, that in response to her
letter, NAFC filed with the trial court a certificate from the secretary of state,
23
See Leinen v. Buffington’s Bayou City Serv. Co., 824 S.W.2d 682, 685
(Tex. App.—Houston [14th Dist.] 1992, no writ) (holding that trial court did not
abuse its discretion by not considering pleadings filed after the summary
judgment hearing); Hill v. Milani, 678 S.W.2d 203, 205 (Tex. App.—Austin 1984)
(holding that trial court did not abuse its discretion by refusing to consider
material filed after the summary judgment hearing), aff’d, 686 S.W.2d 610 (Tex.
1985); Jones v. Hubbard, 302 S.W.2d 493, 496 (Tex. Civ. App.—Waco 1957, writ
ref‘d n.r.e.) (same).
12
dated October 6, 2010, providing that NAFC had satisfied its franchise tax
responsibility in December 2009 and was in good standing as of that time and
continued in good standing through November 2010. We overrule Avdeef‘s
second issue.
In her fifth issue, Avdeef argues that the trial court erred by allowing NAFC
―to make false, misleading and contradicting statements, thus failed to consider
[NAFC]‘s credibility in determining the merits of the case before the [trial court],
regardless of how many times [Avdeef] brought these false and misleading
statements to the court‘s attention.‖ She first argues that NAFC falsely claimed
that the company exists. As we explained in discussion of Avdeef‘s second
issue, Avdeef failed to provide evidence raising a fact issue about whether NAFC
continues to exist. We therefore overrule this part of her issue.
Avdeef further argues that NAFC denied that it had harassed her but that
this denial was refuted by affidavit testimony. Avdeef does not, however, direct
this court to what affidavit testimony in the record she believes supports her claim
that NAFC falsely stated it had not harassed her. NAFC addressed her claim of
harassment in its no-evidence motion and asserted that there was no evidence
that it had harassed Avdeef‘s family, friends, and neighbors. Although we are not
required to do so,24 we looked through Avdeef‘s response to NAFC‘s motion to
24
See Tex. R. App. P. 38.1(g) (requiring the appellant‘s brief to contain
citations to the record in support of the contentions made); Aleman v. Ben E.
Keith Co., 227 S.W.3d 304, 309 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(―In determining whether a respondent to a no-evidence motion for summary
13
see if she produced evidence on this point. In response, Avdeef stated that she
had not collected affidavits from her friends, family, and neighbors ―due to the
fact that this process has been drug out for other reasons.‖ But she did not
explain why she had been unable to obtain these affidavits.
Avdeef did provide an affidavit from her mother-in-law, who stated that
representatives from NAFC had called her repeatedly and ―continually made
verbal threats and harassing statements demanding that [she] have [Avdeef]
relinquish the vehicle.‖ She also stated that a Tarrant County constable had
been sent to her residence by counsel for NAFC and that the constable had
slandered and humiliated her to her neighbors, and the City of Everman Water
Department employees and TXU Utilities contractors who were working on the
water lines by her house. She did not, however, give even a general idea of
what was said to her by the NAFC representatives or the Tarrant County
constable. Thus, her assertion that the statements were harassing, threatening,
or slanderous were conclusory and therefore not competent summary judgment
evidence.25
Avdeef‘s mother-in-law further averred that NAFC‘s representatives called
her house every fifteen minutes to half an hour on most days between
judgment has produced sufficient evidence to raise a genuine issue of material
fact, courts are not required to search the record without guidance.‖).
25
See LMB, Ltd. v. Moreno, 201 S.W.3d 686, 689 (Tex. 2006) (applying
law that legal conclusions in an affidavit made without supporting facts do not
constitute competent summary judgment evidence).
14
September 2007 and January 2008, but Avdeef does not direct this court to
anywhere in the record that NAFC denied this occurred, assuming that this
constitutes actionable harassment.26 Accordingly, this evidence does not support
Avdeef‘s claim that NAFC made ―false, misleading and contradicting statements‖
and that the trial court erred by allowing it to do so. We overrule Avdeef‘s fifth
issue.
In her third issue, Avdeef argues that the trial court erred ―by prejudging
the case by statements made on the court record, and by actions taken by the
court; therefore, [it] improperly failed to consider any of the merits of [Avdeef]‘s
counterclaim to hold [NAFC] responsible for its actions.‖ In support of this issue,
Avdeef first contends that after the hearing on one of Avdeef‘s motions, the trial
judge stepped down from the bench, approached her, lectured her ex parte about
how much she would owe NAFC once she returned the car, and told her that the
amount would be offset by how much NAFC sold the car for. Avdeef asserts that
she found this behavior to be threatening.
Avdeef also points out that the trial court commented at a hearing that
NAFC‘s counsel and firm are ―good people.‖ The trial court‘s actual statement
was in response to NAFC‘s counsel‘s statement to the court that in motions filed
by Avdeef, she made personal attacks on counsel and his firm. Counsel stated
26
See Tex. Fin. Code Ann. § 392.302 (West 2006) (providing that a debt
collector may not oppress, harass, or abuse a person by ―causing a telephone to
ring repeatedly or continuously, or making repeated or continuous telephone
calls, with the intent to harass a person at the called number‖).
15
that although Avdeef was acting pro se, ―she is obligated to at least, at the very
least, be respectful to opposing counsel.‖ In response, the trial court informed
Avdeef that counsel and his law firm handled collections and foreclosure matters
and had ―done a good job‖ and ―they are very respectful of those individuals.‖
Regardless of whether the trial court‘s statements were improper, none of
the actions described by Avdeef show that the trial court prejudged the case on
her counterclaims. Avdeef has failed to point out to this court any claim on which
she produced enough evidence to raise a fact issue but on which the trial court
nevertheless granted no-evidence summary judgment. Accordingly, Avdeef has
failed to show that the trial court prejudged her case or that the trial court
reached an incorrect result.27
Avdeef also complains about the lack of a court reporter at the summary
judgment hearing. But a summary judgment hearing is not an evidentiary
hearing at which a court reporter is required.28 We overrule this argument.
Avdeef further argues that, after she pointed out that the trial court had not
ruled on motions that she had filed, the court made ―the incredible statement . . .
27
See Tex. R. App. P. 44.1.
28
See Olsen v. Comm’n for Lawyer Discipline, 347 S.W.3d 876, 885–86
(Tex. App.—Dallas 2011, no pet.); see also City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 677 (Tex. 1979) (requiring summary judgment grounds
and objections to be in writing and stating that ―[t]o permit ‗issues‘ to be
presented orally would encourage parties to request that a court reporter record
summary judgment hearings, a practice neither necessary nor appropriate to the
purposes of such a hearing‖).
16
‗Well, I guess I better finally read through all the material.‘‖ That the trial court
had at some point not yet read motions filed by Avdeef is not evidence that the
court had prejudged Avdeef‘s claims. The trial court is generally not required to
consider a motion unless it is called to the court‘s attention. 29 And furthermore,
Avdeef indicated that the trial court made this statement at the summary
judgment hearing, which was held on September 22, 2010. The trial court did
not enter its summary judgment until September 27, 2010, and Avdeef has
pointed out nothing in the record to show that prior to rendering its judgment, the
trial court did not consider all competent evidence before it. We overrule
Avdeef‘s third issue.
In her fourth issue, Avdeef argues that the trial court erred by allowing
NAFC ―to violate multiple state and federal laws, and thus wholly refused to
follow the rule of law set down by state and federal lawmakers to regulate . . .
[NAFC], and thus this insults our legal system as a whole.‖ Under this issue,
Avdeef first argues that the frequent phone calls described in her mother-in-law‘s
affidavit was some evidence of harassment in violation of the federal FDCPA.30
Avdeef does not direct this court to what provision of the FDCPA she
claims NAFC violated by making repeated telephone calls to her mother-in-law‘s
29
In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, no
pet.); Risner v. McDonald’s Corp., 18 S.W.3d 903, 909 (Tex. App.—Beaumont
2000, pet. denied).
30
15 U.S.C.A. §§ 1692–1692P (West 2009 & Supp. 2011).
17
house. Nevertheless, we note that under the FDCPA, a debt collector may not
―[c]aus[e] a telephone to ring or engag[e] any person in telephone conversation
repeatedly or continuously with intent to annoy, abuse, or harass any person at
the called number.‖31 We assume that this is the statute that Avdeef contends
NAFC violated.
But the statute defines the term ―debt collector‖ to mean ―any person . . .
who regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.‖32 The statute excludes from the
definition ―any person collecting or attempting to collect any debt owed or due or
asserted to be owed or due another to the extent such activity . . . concerns a
debt which was not in default at the time it was obtained by such person.‖ 33
Under this exclusion, NAFC would not be considered a debt collector because it
acquired its interest in the contract while Avdeef was not yet in default.
Notwithstanding this exclusion, the statute contains a ―false name
exception‖ to the exclusion, providing that the term ―debt collector‖ does include a
creditor collecting on its own debts if in the course of its collection efforts, the
creditor ―uses any name other than his own which would indicate that a third
31
Id. § 1692d.
32
Id. § 1692a.
33
Id.
18
person is collecting or attempting to collect such debts.‖34 But Avdeef‘s mother-
in-law asserted in her affidavit that the persons calling her identified themselves
as representatives of NAFC. Thus, under Avdeef‘s own evidence, the FDCPA
does not apply to NAFC‘s telephone calls.
Avdeef further asserts that the trial court engaged in ―protectionism‖ by
refusing to allow her any proper defense. Avdeef does not explain what defense
she was prevented from making. And although Avdeef claimed that NAFC was
not a proper party to sue on the contract and challenged NAFC‘s requested
remedy for Avdeef‘s breach of that contract, she never refuted the terms of the
contract or that she breached the contract. We overrule Avdeef‘s fourth issue.
In the arguments section of Avdeef‘s brief, she makes an additional
argument that does not appear to relate to any of her issues, but we nevertheless
briefly address it. She asserts that ―by denying [Avdeef her] day in court to
present [her] side of the case, [she was] denied . . . the right to face [her]
accusers before a jury of [her] peers.‖ But the role of a jury is to determine
questions of fact,35 and Avdeef failed to point out to the trial court evidence
raising a fact issue on the no-evidence summary judgment grounds asserted by
34
Id.
35
Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 535 (Tex.
1995) (Spector, J., concurring and dissenting) (―The right of trial by jury dictates
that a jury must be allowed to decide all matters of fact.‖); Halsell v. Dehoyos,
810 S.W.2d 371, 372 (Tex. 1991) (stating that a refusal to grant a jury trial is
harmless error if the record shows that no material issues of fact exist and an
instructed verdict would have been justified).
19
NAFC and the traditional summary judgment grounds established by NAFC. We
overrule this argument.
Having overruled all of Avdeef‘s issues, we affirm the trial court‘s
judgment.
PER CURIAM
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: December 15, 2011
20