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CAUSE NO. 283224
ITIZENS N.A. N THE ISTRICT OURT OF
Plaintiff
ORT END OUNTY EXAS
AYAM ONARPISHEH
Defendant UDICIAL ISTRICT
RESPONSE TO TRADITIONAL
MOTION FOR SUMMARY JUDGMENT
Defendant Payam Honarpisheh asks the Court to deny the motion for summary judgment
filed by plaintiff Citizens Bank, N.A. Citizens Bank This is a suit on a note, but plaintiff fails
to introduce the note or any competent evidence that it is the holder of the note, as the evidence it
submits is for a transaction between Honarpisheh and party RBS Citizens, N.A As Citizens
Bank fails to prove the elements of its claims as a matter of law, summary judgment is improper.
FACTS
Citizens Bank sued Honarpisheh breach of a credit agreement non party
RBS Citizens, N.A. It seeks damages of $31,166.07.
RESPONSE
To succeed on a traditional motion for summary judgment on its cause of action,
the plaintiff must show that there is no genuine issue of material fact and that it is entitled to
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summary judgment as a matter of law.1 To meet this burden, the plaintiff must conclusively prove
all essential elements of its claim.2 A matter is conclusively established if reasonable people could
not differ on the conclusion to be drawn from the evidence.3 If the plaintiff establishes its right to
summary judgment as a matter of law, the burden shifts to the defendant to present evidence that
raises a genuine issue of material fact.4 In deciding whether to grant plaintiff's motion, the court
must take as true all competent evidence favorable to the defendant and indulge every reasonable
inference and resolve any doubts in the defendant's favor.5
2.2. In its original petition, Citizens Bank pleads causes of action for debt/breach of
contract; account stated; and quantum meruit. Its summary judgment motion references a note
attached to the motion as Exh A. There is no promissory note in the exhibits. Citizens Bank’s
exhibits include the signature page of a loan request/credit agreement and note disclosure statement
between Honarpisheh and RBS Citizens, N.A., and an unsigned credit agreement.6 The motion
seeks no relief on Citizens Bank’s claim in quantum meruit.
1
Tex. R. Civ. P. 166a(c); ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); Helix Energy
Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017); Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445,
449 (Tex. 2015); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex.
2014); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
2
See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).
3
See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
4
See Chavez v. Kan. City S. Ry. Co., 520 S.W.3d 898, 900 (Tex. 2017); Amedisys, Inc., 437 S.W.3d at
511; State v. $90,235, 390 S.W.3d 289, 292 (Tex. 2013).
5
See Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhône-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.
1985).
6
See Motion for Summary Judgment (filed Dec 22, 2021) Exh A.
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2.3. To prevail on a breach of contract claim, a plaintiff must establish that it is a proper
party to bring the suit.7 To prevail on an account stated claim, a plaintiff must establish
transactions between the parties that give rise to indebtedness.8
2.4. The loan request/credit agreement signature page and note disclosure statement
reference a different entity, RBS, as the lender.
2.5. A party to the contract or an assignee of a party’s contractual rights can sue for
breach of contract. “Assignment” refers to the transfer of some right or interest from one person
to another.9 But if the existence of an assignment is omitted from the movant’s summary judgment
proof, lack of proof of this material fact precludes rendition of summary judgment.10 There is no
indorsement, allonge, assignment, or any other document in the summary judgment record
conveying the loan from RBS to Citizens Bank.
2.6. The only evidence in the summary judgment record that purports to establish that
Citizens Bank is the proper plaintiff are conclusory statements in affidavits. An affidavit
supporting summary judgment “shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein.”11 If the movant’s affidavit testimony or other evidence
contains conflicting statements that raise a fact issue, the evidence will not support a summary
7
See Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d 153, 161 (Tex.App.—Houston [1st Dist.] 1991, writ
denied).
8
See Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2010.
9
See Twelve Oaks Tower I, Ltd. V. Premier Allergy, Inc., 938 S.W.2d 102, 113 (Tex.App.—Houston [14th
Dist.] 1996, no writ); Black’s Law Dictionary 142 (10th ed. 2014)
10
See Vahlsing v. Collier Cobb & Associates of Dallas, Inc., 560 S.W.2d 117, 118 (Tex. App.—Dallas 1977,
no writ).
11
See Contractors Source, Inc. v. Amegy Bank Nat'l Ass'n, 462 S.W.3d 128, 133 (Tex. App.—Houston [1st
Dist.] 2015, no pet.), Tex. R. Civ. P. 166a(f).
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judgment.12 Conclusory affidavits that are not supported by facts are not proper summary-
judgment proof.13 Also, affidavits must state facts and cannot merely recite legal conclusions.14
Legal conclusions for which no underlying facts are stated will not support a summary judgment.15
2.7. In its motion for summary judgment, Citizens Bank claims that “Plaintiff is the
owner and holder of the Note and is entitled to receive all money due under its terms, as evidenced
by the Note” attached in the business records affidavit.16 That business records affidavit is signed
by Jonathan Masello and includes the following statements: (i) “Citizens Bank is authorized to
collect the account of Payam Honarpisheh”; and (ii) “Plaintiff [i.e., Citizens Bank] is the owner
and holder of this account”.17 There is another affidavit signed by Christopher J. M. Jones, but it
says nothing about Citizens Bank being the holder of any notes or owner of any accounts.
2.8. Masello’s statements are conclusory. There is no evidence in his declaration
beyond the mere conclusion that Citizens Bank is authorized to collect the account or is the owner
and holder of the account in question. The documents in the summary judgment record compel
the conclusion that Citizens Bank is not entitled to enforce the note or collect on the account, as
they reference RBS as the lender.
2.10. Also, the affidavit of Christopher J.M. Jones does not identify or refer to a specific
account—only that “[w]hen [Citizens] Bank places a portfolio of accounts for collection, it
includes an electronic spreadsheet in substantially the form attached [to the motion] as Exhibit
12
See Tex. R. Civ. P. 166a(c); Dillard v. NCNB Tex. Nat’l Bank, 815 SW.2d35, 360-61 ((Tex.App.—Austin
1991, no writ), disapproved of on other grounds, Amberboy v. Societe de Banque Privee, 831 S.W.2d 793
(Tex. 1992).
13
See Duncan v. Lisenby, 912 S.W.2d 857, 859 (Tex. App.—Houston [14th Dist.] 1995, no writ).
14
See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
15
See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).
16
MSJ at 2.
17
MSJ Exh A ¶¶ 1, 10.
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A.”18 The affidavit does not state that Citizens Bank owns an account that belongs to Honarpisheh,
let alone that it is in default, but only identifies the fields in the spreadsheet that reflect the “full
charge-off balance for each account.”19
2.11. The affidavit of Jonathan Masello states that “Defendant defaulted in paying the
total principal and interest due” and that “Plaintiff made demand for payment.”20 Whether a
borrower is in default is a legal conclusion, and legal conclusions in affidavits have no probative
force.21 The business records do not appear to include a demand for payment, as alleged in the
affidavit.
PRAYER
The Court should deny Citizen Bank’s motion for summary judgment because a genuine
issue of material fact exists as to whether Citizens Bank is the proper party to bring this suit and
whether Citizens Bank has established each element of its breach of contract claim. Citizens Bank
has produced no competent summary judgment evidence that it is a proper party to bring this suit.
Defendant Payam Honarpisheh prays that the Court deny Plaintiff’s motion for summary
judgment.
18
Id. at 16 (Affidavit of Christopher J.M. Jones).
19
Id.
20
Id. at 5.
21
See 801 Nolana, Inc. v. RTC Mortg. Trust, 944 S.W.2d,751, 754 (Tex.App.—Corpus Christi 1997, writ
denied).
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Respectfully submitted,
PENNELL LAW FIRM PLLC
19 Briar Hollow Ln., Suite 110
Houston, TX 77027
Telephone: (713) 965-7568
Facsimile: (713) 583-9455
By: /s/ Kevin Pennell
Kevin Pennell
TBN: 24046607
E-Mail: kevin@pennellfirm.com
Stephanie McKernan
TBN: 24120353
E-Mail: smckernan@pennellfirm.com
ATTORNEYS FOR PAYAM HONARPISHEH
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was e-served on all counsel
th
this 11 day of July 2023.
/s/ Kevin Pennell
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CAUSE NO. 283224 ITIZENS N.A. N THE ISTRICT OURT OF Plaintiff ORT END OUNTY EXAS AYAM ONARPISHEH Defendant UDICIAL ISTRICT RESPONSE TO TRADITIONAL MOTION FOR SUMMARY JUDGMENT Defendant Payam Honarpisheh asks the Court to deny the motion for summary judgment filed by plaintiff Citizens Bank, N.A. Citizens Bank This is a suit on a note, but plaintiff fails to introduce the note or any competent evidence that it is the holder of the note, as the evidence it submits is for a transaction between Honarpisheh and party RBS Citizens, N.A As Citizens Bank fails to prove the elements of its claims as a matter of law, summary judgment is improper. FACTS Citizens Bank sued Honarpisheh breach of a credit agreement non party RBS Citizens, N.A. It seeks damages of $31,166.07. RESPONSE To succeed on a traditional motion for summary judgment on its cause of action, the plaintiff must show that there is no genuine issue of material fact and that it is entitled to Page summary judgment as a matter of law.1 To meet this burden, the plaintiff must conclusively prove all essential elements of its claim.2 A matter is conclusively established if reasonable people could not differ on the conclusion to be drawn from the evidence.3 If the plaintiff establishes its right to summary judgment as a matter of law, the burden shifts to the defendant to present evidence that raises a genuine issue of material fact.4 In deciding whether to grant plaintiff's motion, the court must take as true all competent evidence favorable to the defendant and indulge every reasonable inference and resolve any doubts in the defendant's favor.5 2.2. In its original petition, Citizens Bank pleads causes of action for debt/breach of contract; account stated; and quantum meruit. Its summary judgment motion references a note attached to the motion as Exh A. There is no promissory note in the exhibits. Citizens Bank’s exhibits include the signature page of a loan request/credit agreement and note disclosure statement between Honarpisheh and RBS Citizens, N.A., and an unsigned credit agreement.6 The motion seeks no relief on Citizens Bank’s claim in quantum meruit. 1 Tex. R. Civ. P. 166a(c); ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017); Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 2 See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). 3 See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). 4 See Chavez v. Kan. City S. Ry. Co., 520 S.W.3d 898, 900 (Tex. 2017); Amedisys, Inc., 437 S.W.3d at 511; State v. $90,235, 390 S.W.3d 289, 292 (Tex. 2013). 5 See Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). 6 See Motion for Summary Judgment (filed Dec 22, 2021) Exh A. 2|Page 2.3. To prevail on a breach of contract claim, a plaintiff must establish that it is a proper party to bring the suit.7 To prevail on an account stated claim, a plaintiff must establish transactions between the parties that give rise to indebtedness.8 2.4. The loan request/credit agreement signature page and note disclosure statement reference a different entity, RBS, as the lender. 2.5. A party to the contract or an assignee of a party’s contractual rights can sue for breach of contract. “Assignment” refers to the transfer of some right or interest from one person to another.9 But if the existence of an assignment is omitted from the movant’s summary judgment proof, lack of proof of this material fact precludes rendition of summary judgment.10 There is no indorsement, allonge, assignment, or any other document in the summary judgment record conveying the loan from RBS to Citizens Bank. 2.6. The only evidence in the summary judgment record that purports to establish that Citizens Bank is the proper plaintiff are conclusory statements in affidavits. An affidavit supporting summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”11 If the movant’s affidavit testimony or other evidence contains conflicting statements that raise a fact issue, the evidence will not support a summary 7 See Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d 153, 161 (Tex.App.—Houston [1st Dist.] 1991, writ denied). 8 See Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2010. 9 See Twelve Oaks Tower I, Ltd. V. Premier Allergy, Inc., 938 S.W.2d 102, 113 (Tex.App.—Houston [14th Dist.] 1996, no writ); Black’s Law Dictionary 142 (10th ed. 2014) 10 See Vahlsing v. Collier Cobb & Associates of Dallas, Inc., 560 S.W.2d 117, 118 (Tex. App.—Dallas 1977, no writ). 11 See Contractors Source, Inc. v. Amegy Bank Nat'l Ass'n, 462 S.W.3d 128, 133 (Tex. App.—Houston [1st Dist.] 2015, no pet.), Tex. R. Civ. P. 166a(f). 3|Page judgment.12 Conclusory affidavits that are not supported by facts are not proper summary- judgment proof.13 Also, affidavits must state facts and cannot merely recite legal conclusions.14 Legal conclusions for which no underlying facts are stated will not support a summary judgment.15 2.7. In its motion for summary judgment, Citizens Bank claims that “Plaintiff is the owner and holder of the Note and is entitled to receive all money due under its terms, as evidenced by the Note” attached in the business records affidavit.16 That business records affidavit is signed by Jonathan Masello and includes the following statements: (i) “Citizens Bank is authorized to collect the account of Payam Honarpisheh”; and (ii) “Plaintiff [i.e., Citizens Bank] is the owner and holder of this account”.17 There is another affidavit signed by Christopher J. M. Jones, but it says nothing about Citizens Bank being the holder of any notes or owner of any accounts. 2.8. Masello’s statements are conclusory. There is no evidence in his declaration beyond the mere conclusion that Citizens Bank is authorized to collect the account or is the owner and holder of the account in question. The documents in the summary judgment record compel the conclusion that Citizens Bank is not entitled to enforce the note or collect on the account, as they reference RBS as the lender. 2.10. Also, the affidavit of Christopher J.M. Jones does not identify or refer to a specific account—only that “[w]hen [Citizens] Bank places a portfolio of accounts for collection, it includes an electronic spreadsheet in substantially the form attached [to the motion] as Exhibit 12 See Tex. R. Civ. P. 166a(c); Dillard v. NCNB Tex. Nat’l Bank, 815 SW.2d35, 360-61 ((Tex.App.—Austin 1991, no writ), disapproved of on other grounds, Amberboy v. Societe de Banque Privee, 831 S.W.2d 793 (Tex. 1992). 13 See Duncan v. Lisenby, 912 S.W.2d 857, 859 (Tex. App.—Houston [14th Dist.] 1995, no writ). 14 See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). 15 See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). 16 MSJ at 2. 17 MSJ Exh A ¶¶ 1, 10. 4|Page A.”18 The affidavit does not state that Citizens Bank owns an account that belongs to Honarpisheh, let alone that it is in default, but only identifies the fields in the spreadsheet that reflect the “full charge-off balance for each account.”19 2.11. The affidavit of Jonathan Masello states that “Defendant defaulted in paying the total principal and interest due” and that “Plaintiff made demand for payment.”20 Whether a borrower is in default is a legal conclusion, and legal conclusions in affidavits have no probative force.21 The business records do not appear to include a demand for payment, as alleged in the affidavit. PRAYER The Court should deny Citizen Bank’s motion for summary judgment because a genuine issue of material fact exists as to whether Citizens Bank is the proper party to bring this suit and whether Citizens Bank has established each element of its breach of contract claim. Citizens Bank has produced no competent summary judgment evidence that it is a proper party to bring this suit. Defendant Payam Honarpisheh prays that the Court deny Plaintiff’s motion for summary judgment. 18 Id. at 16 (Affidavit of Christopher J.M. Jones). 19 Id. 20 Id. at 5. 21 See 801 Nolana, Inc. v. RTC Mortg. Trust, 944 S.W.2d,751, 754 (Tex.App.—Corpus Christi 1997, writ denied). 5|Page Respectfully submitted, PENNELL LAW FIRM PLLC 19 Briar Hollow Ln., Suite 110 Houston, TX 77027 Telephone: (713) 965-7568 Facsimile: (713) 583-9455 By: /s/ Kevin Pennell Kevin Pennell TBN: 24046607 E-Mail: kevin@pennellfirm.com Stephanie McKernan TBN: 24120353 E-Mail: smckernan@pennellfirm.com ATTORNEYS FOR PAYAM HONARPISHEH CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was e-served on all counsel th this 11 day of July 2023. /s/ Kevin Pennell 6|Page