COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-16-00059-CV

NATIONAL COLLEGIATE 

STUDENT LOAN TRUST 2006-2

APPELLANT

V.

PABLO RAMIREZ APPELLEE 

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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

TRIAL COURT NO. 2014-001130-2

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MEMORANDUM OPINION1

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I. Introduction

Appellant National Collegiate Student Loan Trust 2006-2 (National) 

appeals a take-nothing judgment rendered in its lawsuit against Appellee Pablo 

Ramirez for breach of contract and account stated related to Ramirez’s alleged 

default on his student loan. In a single issue, National argues that the trial court 

 

1See Tex. R. App. P. 47.4.
2

abused its discretion by excluding certain portions of evidence attached to a 

business records affidavit, which it complains prevented it from showing its 

damages from Ramirez’s default on his student loan. We affirm.

II. Procedural Background

National filed suit in March 2014 and moved for and obtained a default 

judgment in October 2014. Ramirez subsequently moved to set aside the default 

judgment on the basis of defective service, and the trial court vacated the default 

judgment in December 2014. The case went to a bench trial on January 15, 

2016. After National rested at the conclusion of its presentation of evidence,2the 

trial court granted a take-nothing judgment for Ramirez. National did not 

request—and the trial court did not make—findings of fact and conclusions of 

law.

National raised its claims as an alleged assignee, pleading that “Plaintiff is 

the trust that currently holds these loans [sic], and is entitled to repaying of the 

loan and all applicable interest,” and sued Ramirez for “Suit on Open & Stated 

Account/Debt/Breach of Contract,” quantum meruit, and attorney’s fees. Thus, 

National assumed the burden to prove not only its claims but also its assignee 

status.3 

 

2National attempted to nonsuit the case before resting, but the trial judge 

refused to permit it. But see Tex. R. Civ. P. 162. National does not complain of 

this ruling on appeal.

3To recover on an assigned cause of action, the party claiming the 

assigned rights must prove a cause of action existed that was capable of 
3

The 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 

the contract by the defendant, and (4) resulting damages to the plaintiff. Rice v. 

Metro. Life Ins. Co., 324 S.W.3d 660, 666 (Tex. App.—Fort Worth 2010, no pet.). 

A valid contract requires an offer, an acceptance in strict compliance with the 

offer’s terms, a meeting of the minds, each party’s consent to the terms, and 

execution and delivery of the contract with the intent that it be mutual and 

binding, along with consideration. Kang v. Song, No. 02-15-00148-CV, 2016 WL 

4903271, at *8 (Tex. App.—Fort Worth Sept. 15, 2016, no pet.) (mem. op.). A 

party is entitled to relief under the common law cause of action of account stated 

when (1) transactions between the parties give rise to indebtedness of one to the 

other; (2) an agreement, express or implied, between the parties fixes an amount 

due; and (3) the one to be charged makes a promise, express or implied, to pay 

the indebtedness. Morrison v. Citibank (South Dakota) N.A., No. 02-07-00130-

CV, 2008 WL 553284, at *1 (Tex. App.—Fort Worth Feb. 28, 2008, no pet.) 

 

assignment and the cause was in fact assigned to the party seeking recovery. 

Tex. Farmers Ins. Co. v. Gerdes, 880 S.W.2d 215, 217 (Tex. App.—Fort Worth 

1994, writ denied). An assignee stands in the shoes of the assignor and may 

assert those rights that the assignor could assert, but the plaintiff must prove that 

the defendant was a party to an enforceable contract with either it or with a third 

party who assigned its cause of action to the plaintiff. Rolen v. LVNV Funding, 

LLC, No. 02-09-00304-CV, 2010 WL 1633402, at *2 (Tex. App.—Fort Worth Apr. 

22, 2010, no pet.) (mem. op.); see Elness Swenson Graham Architects, Inc. v. 

RLJ II-C Austin Air, LP, No. 03-14-00738-CV, 2017 WL 279598, at *3 (Tex. 

App.—Austin Jan. 20, 2017, no pet. h.) (mem. op.) (“Privity is established by 

proof 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.”).
4

(mem. op.). A plaintiff seeking to recover in quantum meruit under an implied 

promise to pay must show that (1) valuable services or material were furnished; 

(2) for the defendant; (3) the services or materials were accepted, used, and 

enjoyed by the defendant; and (4) the circumstances reasonably notified the 

defendant that the plaintiff was expecting to be paid by the defendant for the 

services or materials. Wilson v. Andrews, No. 02-06-00429-CV, 2007 WL 

2460356, at *3 (Tex. App.—Fort Worth Aug. 31, 2007, pet. denied) (mem. op.). 

To recover as an assignee under any of these three causes of action, National 

was required to prove not only that a cause of action existed that was capable of 

assignment but also that the cause of action was in fact assigned to it. See Tex. 

Farmers Ins., 880 S.W.2d at 217; see also Rolen, 2010 WL 1633402, at *2. 

In a trial to the court in which no findings of fact or conclusions of law are 

filed, the trial court’s judgment implies all findings of fact necessary to support it. 

Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766–67 (Tex. 2011); Wood v. Tex. Dep’t 

of Pub. Safety, 331 S.W.3d 78, 79 (Tex. App.—Fort Worth 2010, no pet.).4 The 

judgment must be affirmed if it can be upheld on any legal theory that finds 

support in the record. Rosemond, 331 S.W.3d at 767; see also Liberty Mut. Ins. 

 

4When a reporter’s record is filed, these implied findings are not 

conclusive, and an appellant may challenge them by raising both legal and 

factual sufficiency of the evidence issues. Sixth RMA Partners, L.P. v. Sibley, 

111 S.W.3d 46, 52 (Tex. 2003); Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 

777 (Tex. App.—Fort Worth 2009, no pet.). However, National does not raise 

any legal or factual sufficiency challenges.
5

Co., 295 S.W.3d at 777 (stating that the judgment must be affirmed if it can be 

upheld on any legal theory that finds support in the evidence).

III. Analysis

In its sole issue, National argues that the trial court abused its discretion by 

excluding from evidence the loan financial activity report and the loan payment 

history record that were attached to its business records affidavit. National 

contends that such error prevented it from proving its damages from Ramirez’s 

default on his student loan. Ramirez responds by pointing out that even

assuming that the trial court abused its discretion by excluding portions of 

National’s exhibit, the exclusion was harmless because, among other things, 

National’s evidence was insufficient to support the other essential elements on 

which National had the burden of proof. See Tex. R. App. P. 44.1(a). 

Approximately forty-five days prior to trial, National filed its “Notice of Filing 

of Plaintiff’s Affidavit and/or Other Trial Related Documents,” giving notice “to all 

parties that it intends to rely upon said documents to establish one or more 

elements of its claims and/or defenses.” At the beginning of the bench trial,

National sought to introduce the affidavit and business records as “Plaintiff’s 

Exhibit 1,” stating that 

[i]t contains the affidavit and verification of account of Plaintiff’s 

custodian of records, note disclosure statement, credit agreement 

signed by the Defendants[5] with the applicable cosignor notices, 

 

5National initially sued both Ramirez and another defendant, but it 

nonsuited the other defendant in January 2016. 
6

pool supplement and deposit and sale agreement illustrating the 

chain of title to the loan, loan financial activity reports, 

deferment/forbearance details and loan payment history report.6

The affidavit purported to sponsor an exhibit containing thirty-six documents. 

Ramirez objected to the form of the business records affidavit and asked 

that extraneous hearsay testimony contained within paragraphs 3 and 6 be 

stricken prior to admission. After the trial court sustained Ramirez’s objections to 

paragraphs 3 and 6, National’s counsel responded, “Your Honor, that’s fine with 

3 and 6,” but then asked that two sentences from paragraph 6—“Attached hereto 

and incorporated as Exhibit ‘A’ are 36 pages of business records,” and “Within 

Exhibit ‘A’ is a true copy of the underlying Credit Agreement/Promissory Note”—

be admitted. The trial court agreed to admit those two sentences but excluded 

the remainder of paragraph 6 and all of paragraph 3.7 National does not 

complain of these rulings in its appeal.

 

6The affidavit itself, by Graham Hord, “Legal Case Manager,” stated that he 

was employed by Transworld Systems Inc., National’s designated custodian of 

records “pertaining to the Defendants’ education loan(s) forming the subject 

matter of the above-captioned Complaint.” 

7Paragraph 3 stated that the lawsuit had arisen “out of an unpaid loan or 

loans owed by” Ramirez and that Ramirez had “failed, refused, and /or neglected 

to pay the balance or balances pursuant to the agreed repayment schedule or 

schedules.” The portions of paragraph 6 that were excluded provided, in 

pertinent part, that no payment had been made on the loan since April 21, 2011, 

and that Ramirez owed $47,817 (principal and accrued interest) as of November 

3, 2015. 
7

Ramirez then objected to the loan financial activity report and the loan 

payment history record, and the trial court sustained his objections. National did 

not seek to present by other means any of the evidence that was excluded. 

National’s documents included a document entitled “2006-2 Pool 

Supplement Charter One Bank, N.A.,” which referenced a note purchase 

agreement by and between First Marblehead Corporation and Charter One Bank, 

N.A., in which Charter One Bank, N.A. assigned to National Collegiate Funding 

LLC the student loans set forth on “the attached Schedule 2.” The agreement 

further provided that National Collegiate Funding LLC “will sell the Transferred 

Loans to The National Collegiate Student Loan Trust 2006-2.” Schedule 1 of that 

document lists a variety of note purchase agreements between First Marblehead 

Corporation and financial entities and programs between 2002 and 2005 but 

does not list “Charter One Bank, N.A.” Instead, it lists “the Program Lender for 

the Charter One Referral Loan Program (including loans in the UPromise, 

Collegiate Solutions, College Board and Axiom Alternative Loan Programs)” and 

it lists separately “the Program Lender for Nextstudent.” None of these loan 

program names match the name of the program on the purported loan’s note 

disclosure statement. The last page of that set of documents includes a header 

for “Schedule 2” at the bottom of the page, but nothing listed for “Schedule 2” 

appears on the next or any subsequent page.8

 

8The header of the 2006-2 Pool Supplement states “Page 1 of 4” and lists 

part of a website address and a date in the footer. The header for “Schedule 2” 
8

National’s documents also include a deposit and sale agreement between 

it and National Collegiate Funding LLC referring to the sale “of certain student 

loans,” which were “listed on Schedule 2 to each of the Pool Supplements set 

forth on Schedule A attached hereto.” “Schedule B attached hereto” contains a 

list of the related Student Loan Purchase Agreements. 

The name of the purported loan at issue is “Next Student Undergraduate 

Loan,” and the bottom of the disclosures page included the footer, “NSTCDP 

Next Student UGrad Loan,” but Schedule A to the deposit and sale agreement, 

listing the “Pool Supplements,” does not list either of these names. Instead, it 

references,

Charter One Bank, N.A., dated June 8, 2006, for loans that were 

originated under the following Charter One programs: AAA 

Southern New England Bank, AES EducationGAIN Loan Program, 

Axiom Alternative Loan Program, CFS Direct to Consumer Loan 

Program, Citibank Flexible Education Loan Program, College Board 

Alternative Loan Program, College Loan Corporation Loan Program, 

Collegiate Solutions Alternative Loan Program, Comerica Alternative 

Loan Program, Custom Educredit Loan Program, EdFinancial Loan 

Program, Extra Credit II Loan Program (North Texas Higher 

Education), M&I Alternative Loan Program, National Education Loan 

Program, NextStudent Alternative Loan Program, NextStudent 

Private Consolidation Loan Program, SAF Alternative Loan Program, 

START Education Loan Program, and UPromise Alternative Loan 

Program. [Emphasis added.] 

 

begins at the bottom of “Page 4 of 4,” and the next page lists no page number 

and does not include the web address of the preceding four pages. Therefore, it 

does not appear to be part of the “Schedule 2” referred to in the 2006-2 Pool 

Supplement.
9

Schedule B lists Charter One Bank, N.A. student loan purchase agreements, but 

it also lists “Charter One’s NextStudent Alternative Loan Program” and “Charter 

One’s NextStudent Private Consolidation Loan Program,” and not the name of 

the purported loan at issue here. 

National offered no other evidence at trial to support its claims.

On the record before us, the trial court reasonably could have concluded, 

among other things, that National had failed to demonstrate that it was the holder 

of the note that National’s exhibit purported to show had been made between 

Ramirez and Charter One Bank, N.A., of Albany, New York, as a “Next Student 

Undergraduate Loan.” Because in the absence of findings and conclusions, the 

trial court’s judgment must be affirmed if it can be upheld on any legal theory that 

finds support in the record, we therefore affirm the trial court’s judgment without 

needing to reach National’s sole issue complaining of the exclusion of evidence 

related to damages. See Rosemond, 331 S.W.3d at 767; Liberty Mut. Ins. Co., 

295 S.W.3d at 777; see also Tex. R. App. P. 44.1(a), 47.1; Rolen, 2010 WL 

1633402, at *6 (concluding that there was a lack of evidence to show assignee 

status).

IV. Conclusion

For these reasons, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth

BONNIE SUDDERTH

JUSTICE 
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PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

DELIVERED: March 9, 2017