James G. Cavazos v. Citibank (South Dakota) N.A.

Opinion issued June 9, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00422-CV JAMES CAVAZOS, Appellant V. CITIBANK (SOUTH DAKOTA), N.A., Appellee On Appeal from County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 794,090 MEMORANDUM OPINION James Cavazos, appellant and defendant below, appeals a summary judgment awarding money damages to appellee, Citibank (South Dakota), N.A. (“Citibank”). Appellant presents the following seven issues on appeal: (1) summary judgment pursuant to rule 185 of the Texas Rules of Civil Procedure was improper because the account in question was not a sworn account; (2) Citibank is a national bank and cannot legally “loan credit”; (3) the original note, bookkeeping entries, accounting ledgers, and allonge, were not produced by Citibank; (4) appellant discharged his debt to Citibank “via bond and public policy does not require the payment of a debt to be in any particular type of currency of the United States”; (5) appellant “offered to discharge said debt per Texas Business and Commercial Code article 2 section 603,” even if Citibank “refused to accept the form of payment offered”; (6) appellant was “denied equal protection under the law per the XIV amendment of the U.S. Constitution”; and (7) appellant is a sovereign, exempt from levy, or is a secured creditor, with a prior UCC lien that is superior in priority to Citibank’s judgment against the fictitious entity named “JAMES CAVAZOS” and not against him as a human being. We affirm. BACKGROUND Appellant obtained a credit card from Citibank and used the card to make purchases and receive cash advances. Appellant used the credit card for four years. He did not make payments as required by the terms of his agreement with Citibank. The total balance due on appellant’s credit card account was $11,649.85, according to the verified statement of account filed with Citibank’s original petition and motion for summary judgment. Requests for admission were also attached to the petition. In response to the lawsuit, appellant filed a document entitled “Verified Declaration in the Nature of an Affidavit for Truth in Commerce and Contract for Waiver Of Tort Presented by me, addressee, James G. Cavazos, living sole [sic], one of We the People under Original Common Law jurisdiction of Texas and united [sic] States Contracts, the Constitution.” Appellant did not respond to the requests for admission. Citibank filed a rule 166a(c) motion for summary judgment. Appellant did not file a response to Citibank’s motion but appeared pro se at the hearing on the motion. The trial court entered summary judgment in favor of Citibank on March 15, 2004. DISCUSSION A party moving for a summary judgment has the burden of proving that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex. App.—Houston [1st Dist.] 2002, pet. denied.). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548–49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id. In his first issue, appellant argues that summary judgment under rule 185 was improper because his account with Citibank was not a sworn account. Appellant cites a case in which the El Paso court of appeals held that a credit card that was issued for the purpose of lending money through cash advances and buying goods and services from third parties was not a sworn account as contemplated by rule 185. See Bird v. First Deposit Nat’l Bank, 994 S.W.2d 280, 282 (Tex. App.—El Paso 1999, pet. denied). While it is true that Citibank’s motion cannot prevail under rule 185, appellant’s argument assumes that Citibank’s motion for summary judgment relied exclusively on the assertion that the credit card account was a properly pleaded “sworn account.” Appellant’s assumption is incorrect and, therefore, his reliance on Bird is misplaced. Citibank’s pleadings presented a claim for breach of contract and its motion for summary judgment provided competent summary judgment evidence on that claim. In particular, the deemed admissions included an admission by appellant that he had breached his contract and owed Citibank $11,649.85. We overrule appellant’s first issue. In his second issue, appellant claims that Citibank is a national bank and is barred from “loaning credit.” Appellant’s argument is without merit; Citibank may issue credit cards and charge interest on the cash advances and purchases its cardholders make using those cards. See, e.g., National Bank Act, 12 U.S.C.S. § 85 (Law. Co-op. 1994); Patten v. Maryland Bank, N.A., 126 S.W.3d 532, 533–34 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (noting that Delaware national bank could charge interest in excess of amount allowed by Texas law on credit card issued to Texas resident). We overrule appellant’s second issue. In his third issue, appellant contends that Citibank should have been required, under rule 1002 of the Texas Rules of Evidence, to produce original copies of certain loan documents. Even if appellant had objected to Citibank’s proffer of copies of these documents, and the record before us does not show that he made such an objection, the trial court could have properly admitted the copies under rule 902(10), as the record shows that Citibank attached a business records affidavit in the proper form. See Tex. R. Evid. 902(10). We overrule appellant’s third issue. In his fourth issue, appellant argues that he tendered a “bond” to Citibank and thereby discharged his debt because, under Guaranty Trust Co. v. Henwood, the Supreme Court recognized that Congress had proscribed a creditor from requiring a debtor to pay in “a particular kind of coin or currency of the United States.” 307 U.S. 247, 252-53, 59 S. Ct. 847, 850–51 (1939). Appellant not only misreads Guaranty Trust but he fails to cite any evidence in the record to support his contention that he presented Citibank with his “bond.”. We overrule appellant’s fourth issue. In his fifth issue, appellant reprises his argument that his “bond” discharged his debt to Citibank as provided by the Texas Business and Commerce Code, article 3, section 603. See Tex. Bus. & Com. Code Ann. § 3.603 (Vernon 2002). The authorities appellant cites in support of this assertion are misrepresented, miscited, mischaracterized, or are complete non sequiturs. Appellant has presented no authority or evidence that Citibank was under any obligation to accept payment via the allegedly tendered “bond” or promissory note. See Re/Max of Texas, Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (concluding that appellant’s failure to make argument, cite authority, or refer to record in support of contention resulted in nothing for court to review). We overrule appellant’s fifth issue. In his sixth issue, appellant argues that the trial court violated his right to equal protection by rendering summary judgment because Citibank did not make full disclosure of all material facts so that appellant “could fully understand that agreement, specifically that the bank ‘created’ money by depositing his signed promissory note, thus funding the ‘loan,’ [and] then [his] loan would be canceled.” We understand appellant’s argument to be that Citibank must accept a promissory note from him as payment to discharge his debt. Appellant cites no authority for this argument. For the same reasons given for overruling his fifth issue, we overrule appellant’s sixth issue. In his seventh issue, appellant argues that he is his own secured creditor, with superior priority over any claim Citibank may have over his assets and that he is a sovereign exempt from levy under the “Foreign Sovereign Immunities Act.” Appellant’s secured creditor claim apparently stems from the fact that his name is spelled in all capital letters on Citibank’s pleadings and on the judgment rendered against him. Appellant contends that his name must be spelled in capital and lower case letters and that only the names of corporations are spelled with all capital letters. Appellant asserts that, subsequent to the rendering of judgment, he filed a financing statement, a UCC-1 form, against the fiction “JAMES CAVAZOS” giving him superior lien priority on that fictitious entity’s assets. Appellant also asserts that Citibank has no valid judgment against him “as a human being.” Citibank contends that appellant’s theories fall under the legal category of “gobbledygook.” In his seventh issue, appellant does not cite to any relevant portion of the record, or to any relevant authority, and does not present any comprehensible issue for our review. See Tex. R. App. P. 38.1(h); Massey v. Royall, No. 14-02-01260-CV, 2004 WL 114989, at *1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2004, no pet.) (not designated for publication) (holding that pro se appellant’s incomprehensible issue could not be addressed); Serrano v. Union Planters Bank, N.A., No. 08-03-00101-CV, 2004 WL 2849484, at *1 (Tex. App.—El Paso, Dec. 2, 2004, no pet. h.) (refusing to address seventeen of pro se appellant’s eighteen issues because they were “virtually incomprehensible and nonsensical and do not frame any issues for review by this court”). We overrule appellant’s seventh issue. CONCLUSION We affirm the judgment of the trial court. Sam Nuchia Justice Panel consists of Justices Nuchia, Jennings, and Alcala.