Demetria Washington v. Yellowfin Loan Servicing Corp., as the Successor in Interest to Option One Mortgage Corporation ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00215-CV
___________________________
DEMETRIA WASHINGTON, Appellant
V.
YELLOWFIN LOAN SERVICING CORP., AS THE SUCCESSOR IN INTEREST
TO OPTION ONE MORTGAGE CORPORATION, Appellee
On Appeal from County Court at Law No. 3
Tarrant County, Texas
Trial Court No. 2020-003712-3
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is an appeal from a suit to recover the balance due on a second lien
purchase money note. Following a bench trial, the trial court awarded Appellee
Yellowfin Loan Servicing Corp. a judgment against Appellant Demetria Washington
for $22,517.11, as well as attorney’s fees. In eight issues, Washington argues that the
debt was not properly accelerated due to notice not being sent in the required manner
and that the trial court therefore erred by awarding damages, that the trial court
abused its discretion by overruling her objections to the notice documents, and that
the trial court abused its discretion by admitting testimony about the notice
documents and the amount due. Because we hold that none of Washington’s issues
have merit, we affirm.
II. Factual Background 1
At the bench trial, Matthew Miller, the President of Yellowfin, testified that he
is the custodian of records and that he is familiar with the manner in which records
are created and maintained by Yellowfin. He explained that he had executed a
business-records affidavit and that the records attached to the business-records
affidavit were contained within Yellowfin’s business records. The business-records
1
Because Washington does not raise challenges to the note or to Yellowfin’s
status as note holder, we omit the details regarding the note’s inception and history
and focus instead on the testimony and evidence relevant to Washington’s notice
arguments. Additional facts are included, as needed, within the analysis of various
issues.
2
affidavit and attached business records were included in Plaintiff’s Exhibit No. 1,
which was the sole exhibit admitted during the bench trial. The business records
included the following documents:
• “Purchase Money Note (Fixed Rate – Second Lien)”;
• various allonges to the note;
• “Purchase Money Deed of Trust”;
• “Assignment of Deed of Trust”;
• “Loan Amortization Schedule”;
• a letter from Yellowfin to Washington with the heading “Notice Under
Fair Debt Collection Practices Act”;
• a document from Hatteras—a vendor that generated documents on
Yellowfin’s behalf—stating that it had received a request from its client
“SFYELL10” to generate a demand letter to Washington on January 14,
2020;
• a letter from Yellowfin to Washington with the heading “Notice of
Intent to Accelerate and Right to Cure”;
• a document from Hatteras stating that it had received a request from its
client “SFYELL10” to generate an intent letter to Washington on
February 25, 2020;
• a letter from Yellowfin to Washington with the heading “RE: Notice of
Acceleration”; and
• a document from Hatteras stating that it had received a request from its
client “SFYELL10” to generate an acceleration notice to Washington on
March 25, 2020.
3
The three Hatteras documents concluded with “I certify that the above is true and
correct to the best of my knowledge” and a line stating, “Signature of Hatteras, Inc.
Representative.”
Before the exhibit was admitted, Washington asked and received permission to
take Miller on voir dire. Washington questioned Miller about the three notice letters,
and Miller explained that the notice letters were generated and sent by his letter
vendor Hatteras. Miller said that he gives Hatteras “the information and the letter[,]
and they mail the letter.” He stated that he had “included an affidavit” to reflect that
the notice of acceleration had been sent. Miller’s reference to the Hatteras documents
as “affidavits” caused some confusion, but Yellowfin’s counsel clarified that the
Hatteras documents were actually certifications.2 Washington objected to the
admission of the exhibit, arguing that the notice letters were generated by a third
party; that the business records were untrustworthy and constituted hearsay; and that
if they were admissible, they should be given no probative weight.
The trial court stated,
I think what you’re [Washington’s counsel] arguing really goes to the
weight and not the admissibility of the document because --
....
. . . [Miller is] saying, [“T]hese are in my business records, I asked
these people to send a letter, [and] they told me they did.[”] Now,
2
Later during his testimony, Miller explained that Hatteras sends all of
Yellowfin’s letters and that Yellowfin uses Hatteras “because they have the
certification that tells us when they mailed it out.”
4
whether or not the trier of fact believes that they did based on [Miller’s]
statement to the best of [his] knowledge . . . goes to the weight that a
finder of fact gives to these documents. But I don’t think it goes to the
fact that they can be . . . admitted.
The trial court overruled Washington’s objections and admitted the exhibit.
Throughout the bench trial, although Washington did not testify, her counsel
argued that Yellowfin had not proved that it had sent notice of intent to accelerate to
Washington. The trial court, however, disagreed and concluded, “So it seems like
certainly by the time [Washington] was served she had notice. But I also have
documents that indicate that [Yellowfin] transmitted the notice. And . . . more likely
than not, I believe the notice was sent and the acceleration as well.”
III. Analysis 3
A. Evidentiary Challenges - the Admissibility of and the Weight to be
Given to the Notice Documents and the Hatteras Documents, as
well as to the Testimony on Such Documents
In her third, fourth, fifth, and sixth issues, Washington challenges the following
documents that were admitted into evidence: “Notice Under Fair Debt Collection
Practices Act,” “Notice of Intent to Accelerate and Right to Cure,” and “Notice of
Acceleration” (collectively, the Notice Documents). Washington contends that the
trial court abused its discretion by admitting the Notice Documents, by giving the
3
Although Washington sets forth eight issues under the heading in her brief
labeled as “Issues Presented – TRAP 38.1(f),” the argument section found on pages
10 to 21 of her brief does not contain a single heading or any labels to designate
which issue she is arguing. Washington has therefore put an onerous burden on this
court to attempt to decipher what arguments she is making for each of her eight
issues, many of which are similar or overlapping.
5
Notice Documents any probative value, by overruling her hearsay objection to the
Notice Documents, and by overruling her lack-of-trustworthiness objection to the
Notice Documents. In her seventh issue, Washington argues that the trial court
abused its discretion by overruling her lack-of-personal-knowledge objections to
Miller’s testimony about the Notice Documents. We set forth the standard of review
applicable to these issues and then address and reject each of Washington’s
arguments.
We review a trial court’s evidentiary rulings for abuse of discretion. Owens–
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its
discretion when it acts without regard for any guiding principles. City of Brownsville v.
Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). We must uphold the trial court’s
evidentiary ruling if there is any legitimate basis for the ruling. State Bar of Tex. v.
Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989).
1. The Notice Documents are admissible under the business-
records exception to the hearsay rule.
In Washington’s third issue, she generally challenges the trial court’s admission
of the Notice Documents. Because Washington failed to delineate her arguments in
the argument section of her brief, it is unclear what her specific argument is as to the
Notice Documents’ admissibility. She includes one statement that the Notice
Documents “fail to meet the business[-]records predicate of TRE 902(10) and TRE
803[](6) as their forwarding to the maker of the documents has been disclaimed.”
6
Additionally, in her fifth issue, Washington argues that the trial court abused its
discretion by overruling her hearsay objection to the Notice Documents. We address
these issues together and conclude that the Notice Documents were properly
admitted under the business-records exception to the hearsay rule.
Properly authenticated records of regularly conducted business activity can be
admitted into evidence as an exception to the hearsay rule. Tex. R. Evid. 803(6). The
law on the admissibility of business records was succinctly stated by the First Court of
Appeals as follows:
Under Rule 902(10), business records are self-authenticating and require
no extrinsic evidence of authenticity if they meet the requirements of
Rule 803(6) and are accompanied by an affidavit that complies with
subparagraph (B) of the rule and any other requirements of law. Tex. R.
Evid. 902(10). Subparagraph (B) provides a template for a sufficient
affidavit, which enumerates the elements of Rule 803(6), discussed
above. Tex. R. Evid. 902(10)(B).
Rule 902(10)(B) “does not require the affiant to identify the
particular person who originally created the business record in order to
satisfy the authentication predicate.” H2O Sols., Ltd. v. PM Realty Grp.,
LP, 438 S.W.3d 606, 622 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied). “Testimony by a witness or affiant identifying the exhibits as
the business records of the proponent of the evidence ‘is sufficient
evidence to satisfy the authentication requirement of Rule 901(a),
regardless of whether the witness had personal knowledge of the
contents of this evidence.’” Id. (quoting Concept Gen. Contracting, Inc. v.
Asbestos Maint. Servs., Inc., 346 S.W.3d 172, 181 (Tex. App.—Amarillo
2011, pet. denied)[] (brackets omitted)[)].
Savoy v. Nat’l Collegiate Student Loan Tr. 2005-3, 557 S.W.3d 825, 834 (Tex. App.—
Houston [1st Dist.] 2018, no pet.); see also Simien v. Unifund CCR Partners, 321 S.W.3d
235, 242 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (op. on reh’g) (holding that
7
business records that were generated by a third party were admissible with a standard
business-records affidavit).
Here, the crux of Washington’s arguments takes aim at the admissibility of the
Notice Documents while ignoring the business-records affidavit to which they were
attached and under which they were admitted. Washington’s argument—that “their
forwarding [of the Notice Documents] to the maker of the documents has been
disclaimed”—appears to be a reference to when Miller was asked if he had sent out
the notice of acceleration and he answered, “Through my letter vendor Hatteras . . . .”
Washington implies that Miller was required to have personal knowledge that the
Notice Documents were mailed. Miller, however, testified that he had provided
Hatteras with the information for the letters; that Hatteras had sent the letters, as
shown by the certifications; and that Miller had printed the certifications and had kept
them as part of Yellowfin’s business records. Under the rules of evidence pertaining
to business records, it was not necessary for Miller to have personal knowledge that
the Notice Documents were mailed; it was enough that Miller’s affidavit identified the
documents as records that were kept in the normal course of Yellowfin’s business. See
Savoy, 557 S.W.3d at 834. Moreover, Washington makes no attack on the actual
8
business-records affidavit4 or its compliance with Rule 902(10)(B). 5 We therefore
agree with the trial court’s conclusion that Washington’s attacks go to the weight that
a factfinder can give to the Notice Documents, not to their admissibility.
Accordingly, we overrule Washington’s third and fifth issues.
2. A business-records affiant is not required to have personal
knowledge of the records.
In her seventh issue, Washington argues that the trial court abused its
discretion by overruling her lack-of-personal-knowledge objections to Miller’s
testimony about the Notice Documents. Assuming that Washington preserved this
issue for review,6 the law (as set forth in the preceding issue) is clear that a business-
4
Washington’s brief makes arguments attacking an affidavit, but it appears that
those arguments are directed at the Hatteras documents, which Washington appears
to treat as affidavits instead of certifications.
5
In fact, Washington apparently conceded in the trial court that Miller’s
business-records affidavit complied with Rule 902(10) when her counsel stated that
the Hatteras documents needed to be done like Miller’s “affidavit [that] was carefully
crafted by [Yellowfin’s counsel]. And that is, [‘]I am the custodian of records of the
plaintiff and am familiar with the manner in which its records are created and
maintained by virtue of my duties and responsibilities.[’]” Additionally, the appellate
record demonstrates that the business-records affidavit and accompanying records
were filed on May 13, 2021, which was more than a month prior to the bench trial.
See Tex. R. Evid. 902(10)(A) (requiring the record’s proponent to serve the record and
the accompanying affidavit on each party to the case at least fourteen days before
trial).
6
Washington made a late objection based on prior inconsistent testimony
relating to whether Miller had personal knowledge that the Notice Documents were
sent; the trial court sustained that objection. Other than that sustained objection, it is
unclear when Washington specifically objected to Miller’s testimony on the basis of
lack of personal knowledge and had her objection overruled; the record reflects that
9
records affiant is not required to have personal knowledge of the contents of the
records. See id.; In re A.T., No. 02-04-00355-CV, 2006 WL 563565, at *3 (Tex. App.—
Fort Worth Mar. 9, 2006, pet. denied) (mem. op.) (stating that a business-records
affiant is not required to have personal knowledge of the contents of the records but
must have personal knowledge of the manner in which the records were prepared).
We hold that the trial court thus did not abuse its discretion by overruling
Washington’s lack-of-personal-knowledge objections to Miller’s testimony about the
Notice Documents, and we overrule Washington’s seventh issue.
3. The trial court was entitled to decide the weight to be given
to the Notice Documents.
In her fourth issue, Washington argues that the trial court abused its discretion
by giving the Notice Documents any probative value. Although couched as an issue
attacking the Notice Documents, most of the arguments in Washington’s brief are
actually directed at the Hatteras documents certifying that the Notice Documents had
been sent. But no matter whether her arguments are directed at the Notice
Documents or the Hatteras documents, we cannot say that the trial court abused its
discretion by finding that the documents had probative value.
Here, there is no doubt that the Hatteras documents were probative of whether
the Notice Documents were sent. Yellowfin, through Miller’s business-records
affidavit, established that both the Notice Documents and the Hatteras documents
Washington mentioned Miller’s lack of personal knowledge when she objected on
other grounds to the Hatteras documents.
10
were kept in the regular course of its business. Each of the Notice Documents and
the Hatteras documents reflect the same address that Washington included in her pro
se answer; thus, the documents are internally consistent. Moreover, Washington did
not provide any evidence at trial that she did not receive the Notice Documents.
It was within the trial court’s purview to weigh the evidence. See Gonzalez v.
Wasserstein, No. 01-20-00826-CV, 2022 WL 3268528, at *9 (Tex. App.—Houston [1st
Dist.] Aug. 11, 2022, no pet.) (mem. op.) (“Unless the evidence is conclusive, the
factfinder is entitled to weigh the evidence and to assess witness credibility.” (citing
City of Keller v. Wilson, 168 S.W.3d 802, 816–17 (Tex. 2005))); In re K.H., No. 10-21-
00073-CV, 2021 WL 4080261, at *4 (Tex. App.—Waco Sept. 8, 2021, pet. denied)
(mem. op.) (“In a bench trial, the trial judge is the factfinder who weighs the evidence,
resolves evidentiary conflicts, and evaluates the demeanor and credibility of
witnesses.”). In weighing the Notice Documents and the Hatteras documents and
determining that they had probative value, the trial court did not act without regard
for any guiding principles.7 Accordingly, we overrule Washington’s fourth issue.
7
We note that nowhere in her brief does Washington argue that the Notice
Documents or the Hatteras documents were more prejudicial than probative. The
only mentions of “probative value” in the argument section of her brief are as
follows:
• “The improper documents were also objected to as Hearsay, Not
Trustworthy, failure to meet the business[-]records predicate[,] and of no
probative value[;] however[,] the court overruled said objections and
admitted the improper documents and ruled [in] [Yellowfin’s] favor based
11
4. The trial court did not abuse its discretion by admitting the
Notice Documents into evidence over Washington’s lack-of-
trustworthiness objection.
In her sixth issue, Washington argues that the trial court abused its discretion
by overruling her lack-of-trustworthiness objection to the Notice Documents and
admitting them into evidence. In the argument section of her brief, we find two
places in which Washington makes the general argument that the Notice Documents
“are not trustworthy . . . as their forwarding to the maker of the documents has been
disclaimed.” Washington’s trustworthiness argument fails because the business-
records affidavit, along with Miller’s testimony, prove the trustworthiness of the
Notice Documents.
Documents created or authored by third parties are admissible as the business
records of another business if “(a) the document is incorporated and kept in the
course of the testifying witness’s business; (b) that business typically relies upon the
accuracy of the contents of the document; and (c) the circumstances otherwise
indicate the trustworthiness of the document.” Kirk v. Nat’l Collegiate Student Loan Tr.
upon said documents although there is nothing in the documents that stated
[the] documents were mailed to the property address CMRRR as required”;
• “Absent and [sic] documentary evidence of probative value that the required
notice was provided[,] [Yellowfin] can only prove its case via testimony”;
and
• “Additionally, the tri[al] court erred in giving the documents it erroneously
allowed into evidence any probative value.”
12
2003-1, No. 01-17-00722-CV, 2019 WL 966625, at *4 (Tex. App.—Houston [1st
Dist.] Feb. 28, 2019, no pet.) (mem. op.) (quoting Simien, 321 S.W.3d at 240–41).
Here, Yellowfin provided evidence demonstrating that the Notice Documents,
which were attached to Miller’s affidavit, met the preceding three requirements. In his
affidavit, Miller averred that he is the custodian of Yellowfin’s records and is familiar
with the manner in which its records are created and maintained; that the facts stated
in the affidavit were within his personal knowledge and are true and correct; that the
Notice documents were incorporated and kept in the regular course of Yellowfin’s
business; that “[i]t is typical within the course of [Yellowfin’s] business to rely upon
the accuracy of the contents of such records”; that the documents “are trustworthy as
they were made in conjunction with a promissory note and lien on the purchase of
residential real property, which is a heavily regulated industry with significant federal
and state laws ensuring proper record-keeping and compliance with lending laws”;
and that it was the regular course of business for an employee or representative of
Yellowfin to transmit information to be included in such record. As set forth above,
Miller testified at trial about Yellowfin’s practice of having Hatteras send out all its
letters and about how Miller had provided Hatteras with the information for the
Notice Documents in this case. Moreover, the Notice Documents contain the same
address that Washington included in her pro se answer.
Based on this evidence, we conclude that the trial court did not abuse its
discretion by determining that the Notice Documents and accompanying business-
13
records affidavit showed sufficient indicia of trustworthiness to be properly admitted
as business records. See id. at *5–6 (holding that heavily redacted schedule attached to
business-records affidavit was not improperly admitted over a trustworthiness
objection because, among other things, there were no date discrepancies among the
documents). We overrule Washington’s sixth issue.
B. Sufficiency Challenges
In her first and eighth issues, Washington challenges the sufficiency of the
evidence to prove a condition precedent to Yellowfin’s recovery and an affirmative
defense to recovery. We set forth the standard of review before analyzing her
challenges.
We may sustain a legal-sufficiency challenge—that is, a no-evidence
challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of
law or of evidence bar the court from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Gunn
v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining whether legally sufficient
evidence supports the challenged finding, we must consider evidence favorable to the
finding if a reasonable factfinder could, and we must disregard contrary evidence
unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller, 168 S.W.3d at 827. We indulge “every
reasonable inference deducible from the evidence” in support of the challenged
14
finding. Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456
(Tex. 2017)).
When a party attacks the legal sufficiency of an adverse finding on an issue on
which the party had the burden of proof, the party must demonstrate on appeal that
the evidence establishes, as a matter of law, all vital facts in support of the issue. Cath.
Diocese of El Paso v. Porter, 622 S.W.3d 824, 834 (Tex. 2021). In reviewing a “matter of
law” challenge, we must first examine the record for evidence that supports the
finding, while ignoring all evidence to the contrary. Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001). If no evidence supports the finding, then we will
examine the entire record to determine if the contrary position is established as a
matter of law. Id. We will sustain the issue only if the contrary position is
conclusively established. Id. Evidence conclusively establishes a fact when the
evidence leaves “no room for ordinary minds to differ as to the conclusion to be
drawn from it.” Int’l Bus. Mach. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 235 (Tex.
2019).
Anything more than a scintilla of evidence is legally sufficient to support a
finding. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727–28 (Tex. 2003). More than a
scintilla exists if the evidence rises to a level that would enable reasonable and fair-
minded people to differ in their conclusions. Gunn, 554 S.W.3d at 658. On the other
hand, no more than a scintilla exists when the evidence offered to prove a vital fact is
so weak that it creates no more than a mere surmise or suspicion of its existence.
15
McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 397 (Tex. 2019); Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983).
1. Notice Was Given in Accordance with the Note
In her first issue, Washington argues that the note was not lawfully accelerated
because there was no evidence that the Notice Documents were “sent via CMRRR as
required by the Purchase Money Note and Deed of Trust.” Yellowfin responds that
it gave proper notice of its intent to accelerate pursuant to the notice requirements set
forth in the note. We agree.
The law generally on the notice that must be given before accelerating a note is
as follows:
When a secured promissory note gives the holder the option to
accelerate the maturity of the note upon the maker’s default, equity
demands notice of several events, unless notice is specifically waived.
First, the holder of the note must present the note before accelerating it,
demand payment of the past[-]due installments, Allen Sales & Servicenter,
Inc. v. Ryan, 525 S.W.2d 863 (Tex. 1975), and advise the maker that the
note will be accelerated and the entire balance will become due and
payable if the delinquency is not cured. Ogden v. Gibraltar Sav. Ass’n, 640
S.W.2d 232, 233 (Tex. 1982).
Thereafter, absent payment of the delinquency, the holder must
give notice that the debt has been accelerated. [Id.] That notice cuts off
the debtor’s right to cure the default and gives notice that the entire debt
is due and payable. See Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614(1948).
Baldazo v. Villa Oldsmobile, Inc., 695 S.W.2d 815, 817 (Tex. App.—Amarillo 1985, no
writ) (footnote omitted).
16
Washington argues that the Notice Documents did not constitute proper
notice because there is no evidence that the notices were “sent via CMRRR as
required by the Purchase Money Note and Deed of Trust.” In the argument section
of her brief, Washington states that it is the deed of trust, not the note, that required
notice to be sent via CMRRR. However, the record reflects that the deed of trust
required that notice be sent via certified mail (there is no mention of return receipt
requested) and that the note required only that notice be mailed.8
Here, Yellowfin filed suit to recover the balance due on the note, requesting a
judgment against Washington. Under the terms of the note, Yellowfin was required
to give notice by mail; the note did not require CMRRR or even certified mail. As
explained above in the analysis of the evidentiary challenges, Yellowfin put on
evidence through Miller’s testimony and the Hatteras documents to show that the
Notice Documents had been mailed to Washington.
Washington takes aim at the Hatteras documents, arguing that they do not
meet the standards for an affidavit. During the trial, Yellowfin’s counsel clarified that
the Hatteras documents were not affidavits but were instead certifications that were
included within Yellowfin’s business records. Based on the record, which includes the
8
The note contains the heading “9. MAILING OF NOTICES TO
BORROWER,” which states, “You or I may mail or deliver any notice to the address
above. You or I may change the notice address by giving written notice. Your duty
to give me notice will be satisfied when you mail it.” At the outset of the note, it
states that “[a] word like ‘you’ or ‘your’ means the Lender or ‘Note Holder.’”
17
trial court’s statements about the documents before it overruled Washington’s
objections,9 it does not appear that the trial court treated the Hatteras documents as
separate affidavits but as documents included within the business records submitted
by Yellowfin, along with the business-records affidavit by Miller. The trial court
determined that the documents were admissible under the business-records exception
to the hearsay rule and that Washington’s attacks on the documents went to their
weight, not their admissibility.
Washington further argues that even if the Hatteras documents were
admissible, they “merely stated that a request to send out a particular correspondence
was requested to be sent without any evidence or statement that it was sent.”
However, the evidence about the acceleration notice was not limited solely to
documentary evidence. During the defense’s case in chief, Miller was cross-examined
by Yellowfin’s counsel about Yellowfin’s relationship with Hatteras. Miller stated that
Yellowfin had sent “thousands of letters” to Hatteras and that there had never been
any indication that Hatteras had failed to send any of the letters that they represented
that they had sent. Yellowfin’s counsel further asked Miller about whether the letters
were making it to their intended recipients:
Q . . . [H]ave you been contacted by note holders or by people that you
have been trying to contact by letters thus indicating that they are
receiving the letters that you believe Hatteras is sending?
The trial court’s statements are set forth in the background section of this
9
opinion.
18
A Yes.
Q So based on your conduct of business and your relationship
with Hatteras, do you believe that Hatteras is sending the letters you
asked them to send?
A Yes.
Moreover, although Washington also argues that Miller lacked the personal
knowledge to testify about whether Hatteras had forwarded the Notice Documents,
Miller in his role as President of Yellowfin had personal knowledge of (1) the
company’s business records, which included the Hatteras documents, and (2) the
company’s relationship and history with Hatteras. And, again, the trial court was free
to believe or disbelieve the documentary and testimonial evidence that the Notice
Documents had been sent. See Gonzalez, 2022 WL 3268528, at *9; K.H., 2021 WL
4080261, at *4. Moreover, there is no evidence in the record that Washington did not
receive notice.
Having determined that the note did not require the Notice Documents to be
sent via CMRRR and having reviewed the evidence under the applicable standard of
review, we hold that there is more than a scintilla of evidence showing that notice was
sent as required by the terms of the note, and we overrule Washington’s first issue.10
10
In her second issue, Washington argues that the trial court erred by awarding
damages because the trial court “included damages as if the debt [were] properly
accelerated.” Because we have held that the debt was properly accelerated, we
overrule Washington’s second issue.
19
2. No Offsets or Payments Pleaded or Proven
In her eighth issue, Washington argues that the trial court abused its discretion
by overruling her objections and admitting any testimony from Miller as to the
amount due on the note given his lack of personal knowledge.11 Immediately
preceding the section labeled as “Conclusion” at the end of her brief, Washington sets
forth the following, which we presume is the argument related to her eighth issue:
1) Appellant [sic] failed to prove all just and lawful offsets were allowed.
Appellant [sic] [t]estified that he did not know if any payments
were made after 2007. Appellant [sic] further testified that he calculated
the amount due on his own. Consequently, the amount due is not
accurate given there is a question if any payments were made and not
credited. [Record citations omitted.]
Although Washington’s issue is couched as an attack on the trial court’s ruling on an
alleged objection to Miller’s testimony about the amount due on the note, her
argument is actually an attack on the sufficiency of the evidence to prove an
Washington’s argument appears to be based on questions that her counsel
11
asked during his voir dire of Miller:
Q [By Washington’s counsel] [T]here hadn’t been a payment on this note
since 2007, has there?
A I -- I do not know.
Q And you purchased this [note] when?
A I purchased this in 2019.
After reviewing the record citations that Washington cites to within her eighth issue,
we are unable to find whether she made the specific objection that she argues on
appeal.
20
affirmative defense. Yellowfin responds that Washington failed to plead the
affirmative defense of payment in either of her petitions. We agree.
Payment is an affirmative defense that the defendant has the burden to plead
and prove. See Tex. R. Civ. P. 94; Haddington Fund, LP v. Kidwell, No. 05-19-01202-CV,
2022 WL 100111, at *12 (Tex. App.—Dallas Jan. 11, 2022, pet. denied) (mem. op.). If
a party wishes to prove payment, he must affirmatively plead payment and file an
accounting of the payments. Tex. R. Civ. P. 95. Absence of a proper plea of payment
renders evidence as to payment inadmissible. Id.; Haddington Fund, 2022 WL 100111,
at *12. An affirmative defense not properly raised in pretrial pleadings is generally
waived. Villarreal v. Myers, No. 13-20-00215-CV, 2022 WL 868537, at *7 (Tex.
App.—Corpus Christi–Edinburg Mar. 24, 2022, no pet.) (mem. op.) (citing MAN
Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136–37 (Tex. 2014)).
Because Washington failed to plead the affirmative defense of payment and file
an accounting of payments as required under Rules 94 and 95, she has waived her
argument that possible payments were not credited against the balance of the note.
See Tex. R. Civ. P. 94, 95; Haddington Fund, 2022 WL 100111, at *12 (holding that Rule
95 prohibited appellees from introducing any evidence of payments not admitted by
appellants because appellees did not describe their payments with particularity or file
an account stating the nature of any payments); Nitishin v. Fed. Debt Mgmt., Inc., No.
05-95-00531-CV, 1996 WL 76232, at *5 (Tex. App.—Dallas Feb. 21, 1996, no writ)
(“[Appellant] did not plead the affirmative defense of payment. [Appellant] is
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therefore barred from proving any additional credits or offsets to the outstanding
principal amount not admitted by [appellee].”).
Alternatively, there is no basis for Washington’s contention on appeal that
payments were not credited as she did not produce any evidence of payments at trial. 12
Miller testified that Yellowfin had agreed to waive any payments that were due prior to
when it acquired the note and that Yellowfin was seeking to recover only the post-waiver
principal of $22,517.11. Yellowfin’s business records included a payment schedule
showing that the initial balance on the note was $25,650.00 in 2005 and that the balance
due, assuming all payments had been made through June 1, 2019, would have been
$22,517.11. Washington did not produce any evidence to contradict this amount.
Because Washington neither pleaded the affirmative defense of payment nor
put on evidence of any payments, she did not establish as a matter of law that she was
entitled to any offsets on the balance of the note; thus, the uncontradicted evidence
on the note’s balance supports the judgment against Washington for $22,517.11.
Accordingly, we overrule Washington’s eighth issue.
12
In fact, her counsel stated during his motion for directed verdict, “And I
would suggest to you that 12 years with no payment is knowledge that a contract is
terminated.”
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IV. Conclusion
Having overruled each of Washington’s eight issues, we affirm the trial court’s
judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: November 3, 2022
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