James A. Monroe v. Unifund CCR Partners

Opinion issued May 13, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00101-CV

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James A. Monroe, Appellant

V.

Unifund CCR Partners, Appellee

On Appeal from the County Court at Law Number Three

Harris County, Texas

Trial Court Case No. 916119

MEMORANDUM OPINION

          Appellant, James Monroe, brings this appeal to complain of the trial court’s judgment in favor of appellee, Unifund CCR Partners (“Unifund”).  In four points of error, Monroe contends that there is insufficient evidence to support (1) the trial court’s exercise of jurisdiction over this case; (2) the trial court’s findings that his credit card account was assigned to Unifund; (3) the trial court’s findings that he purchased goods and services with the account, promised to pay for said account, and failed to pay for the account and thereby breached his account agreement; and (4) the trial court’s finding that Unifund was entitled to recover $25,406.76, plus interest.  We affirm.

BACKGROUND

          Citibank South Dakota (“Citibank”) issued a credit card to Monroe.  Monroe received and used that credit card, incurring charges on the account.  After Monroe failed to pay all of the amounts due on the account, Citibank assigned the account to Unifund.  In March 2008, Unifund filed suit against Monroe to recover the amount owed—$25,405.76. 

Unifund allegedly was the assignee of Citibank and sued Monroe for breach of contract, money had and received, account stated and quantum meruit. Unifund also sought interest, costs, and its attorney’s fees.  Attached to the petition was an affidavit by Kim Kenney, who stated that she was an authorized representative of Unifund and that Monroe owed Unifund $25,405.76 on an account that Unifund acquired from Citibank.  Both Kenney’s affidavit and the petition contained a 16-digit account number.  Also attached to the petition was a Unifund Statement informing Monroe that $25,405.76 was due on the account “issued under the name of Citibank South DakotaNA [sic] and acquired from Citibank.”  The Unifund Statement listed the same 16-digit account number given in the petition and Kenney’s affidavit.

Monroe answered with a general denial, and also stated that “[t]he Defendant never entered into a contract with the Plaintiff and there is no proof that Plaintiff is entitled to recover in the capacity in which it sues; therefore, Plaintiff has no standing to bring this suit.”  Monroe attached a verification to this answer.

Unifund moved for summary judgment, filing a cursory motion for summary judgment incorporating all of its previous pleadings and their accompanying exhibits. As Exhibit A to its motion for summary judgment, Unifund attached the affidavit of Joseph Lutz, stating (1) Lutz was the designated agent of Unifund; (2) he had personal knowledge of the “books and records of [Unifund] concerning this claim against [Monroe];” (3) Monroe entered into an agreement that allowed him “to receive cash advances and/or purchase goods and services;” (4) Monroe owed $25,405.76; and (5) documents attached to the affidavit were Unifund’s business records.  Kenney’s affidavit and the Unifund statement, which had been attached to Unifund’s petition, were also attached to Lutz’s affdiavit.

Portions of a “Bill of Sale, Assignment and Assumption Agreement” also followed Lutz’s affidavit.  This agreement was executed by Citibank and “Unifund Portfolio A, LLC.”  The Agreement stated that it conveyed “good and marketable title to the Accounts described in Section 1.2 of the Agreement,” to Unifund Portfolio A, LLC and its “successors and assigns.”  However, Section 1.2 of the Agreement was not included in the pages following Lutz’s affidavit.  An “AT&T Universal Card Cardmember Agreement” and monthly statements from August 2003 through August 2004 for an AT&T Universal Card issued to Monroe were, however, attached to Lutz’s affidavit. 

In his response to Unifund’s motion for summary judgment, Monroe objected to each of Unifund’s exhibits and argued that summary judgment in Unifund’s favor was improper.  First, Monroe contended that Unifund’s claim was essentially a suit on a sworn account—a cause of action that Unifund had not pleaded and one that does not allow the holder of a credit card debt to sue for payment.  Monroe further contended that summary judgment was not proper on Unifund’s breach of contract claim because Unifund had not proved the existence of a contract or its terms and conditions.  Monroe contended that the actual credit card agreement between himself and Citibank was not in evidence.  Finally, Monroe argued that Unifund was not entitled to summary judgment in its favor because Unifund had failed to establish that it had standing to sue as an assignee of Citibank.

The trial court denied Unifund’s motion for summary judgment and sustained several of Monroe’s objections to the evidence Unifund introduced in support of its motion.

Shortly after the trial court denied Unifund’s motion, Unifund filed another business records affidavit by Lutz with the court.  As in the previous affidavit, Lutz attested that documents following his affidavit were the business records of Unifund relating to the account held by Monroe.  The following documents were attached:

1.     Unifund Statement issued to James Monroe, listing a 16-digit account number and stating that Monroe owed $25,405.76 on this account, the account was past due and noting “This Account Was Issued Under the Name of Citibank South Dakota NAand [sic] acquired from Citibank (South Dakota) N.A.”

2.     Assignment from Unifund Portfolio A, LLC to Unifund CCR Partners of “all of Assignor’s rights in the Receivables, for collection purposes only, including conducting litigation in Assignee’s name, for those Receivables which Assignor owns or may acquire from time to time.”

3.     Bill of Sale, Assignment and Assumption Agreement from Citibank to Unifund Portfolio A, LLC of “Accounts described in Section 1.2 of the Agreement.”[1] 

4.     Monthly statements of Monroe’s AT&T Universal Card, ranging from August 2003 through August 2004, detailing charges made by Monroe to the account, the accrual of interest at a rate of 28.490% annually and showing a balance of $10,063.78 as of August 31, 2004. 

5.     Citibank Card Agreement, from Citibank (South Dakota), N.A., stating that the agreement was binding upon receipt of the card unless the account was cancelled within 30 days of receipt of the card and there had been no authorized use of the card.  The Agreement contained the conditions of use and the terms for calculating the balance owed on the card.  The Agreement also reserved Citibank’s right to assign the account to a third party. The duplicated signature of Thomas W. Jones, President & CEO of Citibank (South Dakota), N.A. appeared on the last page.

One month after Unifund filed this business records affidavit, a bench trial was held.  At trial, Unifund admitted Lutz’s second business records affidavit into evidence. Monroe testified that he did not have an account with Citibank, but he admitted that he had an AT&T Universal credit card.  He admitted that the name and address on the statements relied upon by Unifund were his actual name and address, but he denied receiving any such statements.  At the conclusion of the bench trial, the trial court entered judgment in Unifund’s favor.  Unifund was awarded $25,405.76, plus post-judgment interest and attorney’s fees of $1,500. 

Monroe filed a request for findings of fact and conclusions of law.  The trial court issued findings of fact and conclusions of law stating, in relevant part:[2]

FINDINGS OF FACT

1.      That Citibank South Dakota, N.A., and [Monroe] entered into an account agreement.  That account has been assigned to Unifund CCR Partners.

2.     [Monroe] did purchase goods and services at different places upon the account.  Said purchases were at the agreed prices charged or at the reasonable market value.

3.     [Monroe]  promised to pay for said account. 

4.     Said account remains unpaid damaging [Unifund] in the amount of $25,405.76.

5.     By failing to pay for said account pursuant to the terms of the account agreement, [Monroe] breached the account agreement.

6.     [Unifund] is entitled to reasonable and customary attorney’s fees of $1,500.

CONCLUSIONS OF LAW

1.     Said account remains unpaid damaging [Unifund] in the amount of $25,405.76.

2.     Pursuant to the terms of the account agreement, [Monroe] was also responsible for interest upon the indebtedness, as well as attorney’s fees.

3.     The interest upon the indebtedness was at the rate of 6% per annum from November 5, 2007 until date of entry of Judgment.

4.     [Unifund] has standing to sue for breach of account agreement.

5.     [Unifund] performed under the terms of the account agreement.

6.     By failing to pay for said account pursuant to the terms of the account agreement, [Monroe] breached the account agreement.

7.     That [Unifund] is entitled to post-judgment interest at the rate of 5% per annum from the date of the entry of the judgment until paid.

8.     That [Unifund] is entitled to interest on the attorney’s fees and cost of court at the rate of 5% per annum from the date of entry until paid.

Monroe filed a motion for new trial, which the trial court denied.

ANALYSIS

On appeal, Monroe contends that there is insufficient evidence to support (1) the trial court’s exercise of jurisdiction over this case; (2) the trial court’s findings that his credit card account was assigned to Unifund; (3) the trial court’s findings that he purchased goods and services with the account, promised to pay for said account, and failed to pay for the account and thereby breached his account agreement; and (4) the trial court’s finding that Unifund was entitled to recover $25,406.76, plus interest. 

A. Standard of Review

In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict.  In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).  We review a trial court’s factual determinations after a bench trial for legal and factual sufficiency, using the same standards applied to jury verdicts.  Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).  A challenge to the legal sufficiency will be sustained if there is a complete absence of evidence of an essential fact, the trial court was barred by rules of law or evidence from giving weight to the only evidence proving an essential fact, no more than a scintilla of evidence was offered to prove an essential fact, or the evidence conclusively establishes the opposite of the essential fact.  City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).  We view the evidence in the light most favorable to the trial court’s determination, crediting favorable evidence if a reasonable fact finder could have done so and disregarding contrary evidence unless a reasonable fact finder could not.  Id. at 807.  Circumstantial evidence may be used to establish any material fact, but it must establish more than mere suspicion.  Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (“The equal inference rule provides that a jury may not reasonably infer an ultimate fact from meager circumstantial evidence ‘which could give rise to any number of inferences, none more probable than another.’”).  We consider the totality of the known circumstances in determining the legal sufficiency of the circumstantial evidence and the reasonable inferences to be drawn from it.  See Felker v. Petrolon, Inc., 929 S.W.2d 460, 464 (Tex. App.—Houston [1st Dist.] 1996, writ denied).

When a party attacks the factual sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).  We consider all the evidence and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  

We review the trial court’s conclusions of law de novo.  BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).  Although appellants may not challenge a trial court’s conclusions of law for factual sufficiency, we may review the trial court’s legal conclusions drawn from the facts to determine whether the conclusions are correct.  Id.

The trial court as fact finder is the sole judge of the witnesses’ credibility and the weight to be given their testimony, and we will not disturb the court’s resolution of evidentiary conflicts that turn on credibility determinations or the weight of the evidence.  Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906, 914 (Tex. App.—Austin 1998, pet. denied); see City of Keller, 168 S.W.3d at 819.

B. Jurisdiction/Standing

In his first point of error, Monroe contends that the trial court lacked subject-matter jurisdiction because Unifund failed to establish standing to bring its claims.  “Whether a court has subject matter jurisdiction is a question of law.”  Frost Nat. Bank v. Fernandez, No. 08-0534, 2010 WL 1526369 (Tex. April 16, 2010) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).  “Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law reviewed de novo.”  Id. at 6; see also Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 404 (Tex. App.—El Paso 2009, no pet.). 

Standing is a prerequisite to subject matter jurisdiction.  M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001).  It 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); see also Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004) (“Not only may an issue of subject matter jurisdiction ‘be raised for the first time on appeal by the parties or by the court’, a court is obliged to ascertain that subject matter jurisdiction exists regardless of whether the parties have questioned it.”  (internal citations omitted)), superseded by statute on other grounds, Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2009).  Standing cannot be waived. Tex. Ass’n of Bus., 852 S.W.2d at 445.  It cannot be conferred by consent.  See Loutzenhiser, 140 S.W.3d at 358. Standing is a party’s justiciable interest in a controversy—only the party whose primary legal right has been breached may seek redress for an injury.  Eaves, 301 S.W.3d at 404.  Without a breach of a legal right belonging to that party, that party has no standing to litigate.  Id. (citing Cadle Co. v. Lobingier, 50 S.W.3d 662, 669–70 (Tex. App.—Fort Worth 2001, pet. denied)).

“It has long been the rule that a plaintiff’s good faith allegations are used to determine the trial court’s jurisdiction.”  Id. (citing Brannon v. Pac. Employers Ins. Co., 224 S.W.2d 466, 469 (Tex. 1949)).  A court may presume the truth of allegations made in a party’s pleadings when determining standing.  Id. (citing Tex. Ass’n of Bus., 852 S.W.2d at 446 ( “[W]hen a Texas appellate court reviews the standing of a party sua sponte, it must construe the petition in favor of the party . . .”); Brown v. Todd, 53 S.W.3d 297, 305 n.3 (Tex. 2001) (“Because standing is a component of subject matter jurisdiction, we consider [it] as we would a plea to the jurisdiction, construing the pleadings in favor of the plaintiff.”)); see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (recognizing that plaintiffs do not have to “put on their case simply to establish jurisdiction”).  Additionally, as Monroe concedes in his brief, “a court is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.” Appellant’s Brief, pg. 10 (citing TCJC v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)); see also Tex. Dept. of Parks & Wildlife, 133 S.W.3d at 226 (noting that, “disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact”). 

Monroe argues that Unifund failed to establish standing because it failed to introduce evidence supporting its claim, made in its petition, that it had acquired Monroe’s credit card account from Citibank South Dakota, N.A. by assignment. In order to establish standing to maintain a breach of contract action, a plaintiff must show either third-party beneficiary status or privity.  Neal v. SMC Corp., 99 S.W.3d 813, 817 (Tex. App.—Dallas 2003, no pet.); Redmon v. Griffith, 202 S.W.3d 225, 239 (Tex. App.—Tyler 2006, pet. denied).  For purposes of standing, “[p]rivity is established by proving that the defendant was a party to an enforceable contract with either the plaintiff or a party who assigned its cause of action to the plaintiff.”  Id.  An assignee stands in the shoes of the assignor and may assert those rights that the assignor could assert.  See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex. 2000).

In Eaves, the El Paso Court of Appeals addressed facts similar to our case in the face of a claim that the plaintiff lacked standing to sue on a credit card debt.  See Eaves, 301 S.W.3d at 404–06.  The El Paso court held that the assignee—Unifund—had standing to sue when the evidence demonstrated that the original holder of the debt (Citibank) issued a credit card to Eaves, who defaulted on his account; Citibank sold the account to Unifund Portfolio; and Unifund Portfolio assigned its rights to collect the debt to Unifund Partners.  Id. at 404–06. 

Similarly, the trial court in this case had evidence and pleadings supporting Unifund’s claim that it was the assignee of Citibank’s account with Monroe—it had the Unifund Statement issued to James Monroe, listing a 16-digit account number that was the same as Monroe’s credit card number on his AT&T account statements,[3] informing Monroe he owed $25,405.76 on this account and that “[t]his Account Was Issued Under the Name of Citibank South Dakota NAand [sic] acquired from Citibank (South Dakota) N.A.”  In addition, the trial court had an “Assignment” from Unifund Portfolio A, LLC to Unifund CCR Partners of “those Receivables which Assignor owns or may acquire from time to time.”  The trial court also had an agreement between Unifund Portfolio A and Citibank, which established that Citibank did transfer some accounts to Unifund Partners although the agreement did not include a list of which accounts were conveyed. Finally, the trial court had Kenney’s affidavit, attached to Unifund’s petition and its motion for summary judgment, stating that Monroe owed Unifund $25,405.76 on an account that Unifund acquired from Citibank. 

At trial, Monroe testified that he did not have a Citibank account, and the monthly statements admitted by Unifund were labeled “AT&T Universal Card” rather than “Citibank.”  However, the above evidence submitted by Unifund was to the contrary, and it established that Monroe had an account with Citibank with a particular 16-digit number; that Monroe owed an outstanding balance on that account; that Citibank assigned the account to Unifund Portfolio A, LLC; and that Unifund Portfolio A, LLC assigned the account to Unifund as an account receivable to be collected upon.  The trial judge, as the determiner of credibility, was entitled to believe Unifund’s evidence and to discredit Monroe’s testimony.  City of Keller, 168 S.W.3d at 819 (fact-finder is sole judge of credibility of witnesses and weight to give their testimony).  Accordingly, we overrule Monroe’s first point of error.

C. Existence and Assignment of Contract with Citibank

Monroe’s second point of error is that there is insufficient evidence to support the trial court’s finding of fact and conclusion of law that Monroe and Citibank entered into an account agreement and that the account was assigned to Unifund CCR Partners.  Monroe contends that there was “no evidence” that he had a Citibank credit card, and he points to charges in the AT&T Universal Card statements that are not specifically mentioned in the Citibank cardholder agreement admitted at trial. 

However, Lutz’s affidavit and Unifund’s business records—admitted into evidence at trial—affirmatively stated that Unifund was collecting on an account that Monroe had with Citibank.  Lutz’s affidavit and the statement Unifund forwarded to Monroe also contained the same account number as Monroe’s monthly AT&T Universal Card account statements. While Monroe denied having an account with Citibank, Unifund’s business records and Lutz’s are some evidence to the contrary.[4]  Further, as discussed above, there is ample evidence in the record to support the trial court’s finding that the credit card account was assigned to Unifund—both Lutz’s affidavit and Unifund’s business records informed Monroe that the account has been assigned to Unifund.  

Viewing the evidence in the light most favorable to the trial court’s judgment, we do not find the evidence was legally insufficient to support the trial court’s finding that Monroe and Citibank entered into an account agreement and that the account was assigned to Unifund CCR Partners.  City of Keller, 168 S.W.3d at 807, 810.  Similarly, considering all of the evidence, we do not find that the trial court’s finding is against the great weight and preponderance of the evidence, or that it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust.  Dow Chem. Co., 46 S.W.3d at 242; Cain v. Bain, 709 S.W.2d at 176.  We overrule Monroe’s second point of error. 

D. Breach of Contract

In his third point of error, Monroe contends there is insufficient evidence to support the trial court’s findings of fact that he purchased goods and services upon the Citibank account, that he promised to pay for that account, and that he failed to pay on the account and the conclusion of law that Monroe breached the account agreement. 

The essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained as a result of the breach.  Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 235–36 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Winchek v. Am. Express Travel Related Servs. Co., 232 S W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.)).

Although Monroe denied having a credit card issued by Citibank, he did agree that the name and address listed on the AT&T Universal Card statements admitted at trial were correct.  In addition, Unifund’s business records and the accompanying affidavit affirmatively stated that Monroe had an account with Citibank and that he purchased goods and services with that account.  This evidence, in addition to the monthly statements showing Monroe’s correct name and address and an accrual of charges over a period of time, are some evidence that Monroe did have an account with Citibank and that he made purchases on that account over a period of time.  Similarly, Lutz’s statement that a balance was owed on the account, plus the admission of a Citibank Agreement showing that the cardholder was obligated to pay as charged, was evidence supporting the trial court’s findings.

Viewing the evidence in the light most favorable to the trial court’s judgment, we do not find that the evidence was legally insufficient to support the trial court’s finding that Monroe purchased goods and services upon his Citibank account, that he promised to pay for that account, and that he failed to pay on the account and thereby breached the account agreement.  City of Keller v. Wilson, 168 S.W.3d at 807, 810.  Similarly, considering all of the evidence, we do not find that the trial court’s finding is against the great weight and preponderance of the evidence, or that it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust.  Dow Chem. Co., 46 S.W.3d at 242; Cain, 709 S.W.2d at 176.  We overrule Monroe’s third point of error. 

E. Trial Court’s Award of $25,406.76

In his fourth and final point of error, Monroe contends that the evidence is insufficient to support the trial court’s findings that Unifund has been damaged in the amount of $25,406.76, plus interest.  Monroe again argues that there is no evidence that he used a Citibank card to make purchases and that he owed a balance on any Citibank card. Further, Monroe contends that Unifund failed to establish the terms of any contract he may have had with Citibank, including failing to establish the interest rate for purchases. 

The business records admitted at trial included monthly statements of Monroe’s AT&T Universal Card, ranging from August 2003 through August 2004, detailing charges made by Monroe to the account, the accrual of interest at a rate of 28.490% annually (.07805% daily), and a balance of $10,063.78 as of August 31, 2004.  The Citibank agreement attached as a business record also stated additional charges for being over the credit limit of $10,000 and late fees.  As with the other findings contested by Monroe, Lutz’s affidavit, and the business records sent to Monroe, are some evidence from which a reasonable fact-finder could determine that Monroe owed at least $25,406.76 on his credit card account.  See City of Keller, 168 S.W.3d at 827.  Other than denying he had such a card—a contention the trial court evidently disbelieved—Monroe did not admit any evidence to contradict this evidence.  In weighing all the evidence, we conclude the finding of $25,406.76 in damages is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.  See Cain, 709 S.W.2d at 176.  

Pre-judgment interest at a rate of 6% is authorized by section 302.002 of the Texas Finance Code.  Tex. Fin. Code Ann. § 302.002 (Vernon 2006). Further, the trial court’s award of post-judgment interest is required by section 304.001 of the Texas Finance Code.  See Tex. Fin. Code Ann. § 304.001 (Vernon 2006) (“A money judgment of a court in this state must specify the postjudgment interest rate applicable to that judgment.”). Unifund pleaded for, and is entitled to, pre- and post-judgment interest on the amount of monetary damages awarded to it—in this case, 6% pre-judgment and 5% post-judgment.[5]

We overrule Monroe’s fourth point of error.

CONCLUSION

We affirm the judgment of the trial court.

                                                                   George C. Hanks, Jr.

                                                                   Justice

Panel consists of Justices Keyes, Hanks, and Higley.

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[1]           As with the previous version, Section 1.2 of the Agreement was not attached.

[2]           The trial court’s original findings of fact and conclusions of law were issued on February 5, 2009.  After a motion by Unifund, the trial court issued amended findings of fact and conclusions of law on September 14, 2009.

[3]           The fact that the same 16-digit account number was used for both the monthly AT&T account statements and the Unifund account that was acquired from Citibank is some evidence, albeit circumstantial, that the AT&T account used by Monroe was indeed a Citibank-issued credit card. 

[4]           On appeal, Monroe does not contend that the trial court erred by admitting these records or that the trial court could not rely upon the statements contained within them. 

[5]         Section 304.003 states that the post-judgment rate is (1) the prime rate as published by the Board of Governors of the Federal Reserve System on the date of computation; (2) 5% a year if the prime rate as published by the Board of Governors of the Federal Reserve System described by Subdivision (1) is less than five percent; or (3) 15% a year if the prime rate as published by the Board of Governors of the Federal Reserve System described by Subdivision (1) is more than 15%.  Tex. Fin. Code Ann. § 304.003 (Vernon 2006). The prime rate on November 4, 2008 was 4%.  See http://www.federalreserve.gov/releases/h15/20081110/.