A state Court of Appeals in Texas has affirmed a lower court’s refusal to set aside a summary judgment in a credit card collection case, ruling the plaintiff never offered sworn evidence to support his claim that he was not notified of the hearing that produced the judgment.
The background: The dispute traces back to a collection lawsuit filed five years ago.
- The defendant sued the plaintiff for breach of contract over unpaid credit card debt. The plaintiff appeared in that suit and moved for arbitration, but arbitration was never ordered, and the trial court ultimately granted summary judgment against him.
- Last year, the plaintiff filed a petition for a bill of review, a request asking the court that issued a judgment to set it aside, arguing he did not receive sufficient notice of the summary judgment hearing.
- At the hearing on his petition, the plaintiff did not dispute that he knew about the original suit or that the summary judgment motion and hearing notice contained certificates of service. Instead, he argued the certificates were fatally defective because they lacked tracking numbers and proof of delivery, telling the court, “I never received or signed any certified mail.”
- The defendant countered that notice had been mailed as stated in the certificate of service, which listed the same address for the plaintiff that appeared on his credit card statements and on his own petition.
- The trial court denied the petition.
The ruling: The Appeals Court affirmed the denial of the plaintiff’s petition, ruling that his notice argument “missed the mark” in two ways.
- First, the court pointed to a rule change that took effect more than a decade ago allowing service by regular mail, meaning certified mail, tracking numbers, and signed delivery receipts were never required in the first place.
- More significantly, the plaintiff bore the burden of proving he was not served with notice of the hearing or the resulting judgment, and he put on no evidence at all. His statement at the hearing about never receiving service “was argument, not testimony under oath,” the court noted, and he neither verified his claim by affidavit nor testified to it under oath.
- The court also emphasized that bills of review are narrowly construed and “not lightly granted” because of the state’s strong public policy favoring the finality of judgments.
