Preview
5/16/2023 8:49 AM
Marilyn Burgess - District Clerk Harris County
2023-30201 / Court: 295
Envelope No. 75666521
By: Chandra Lawson
Filed: 5/16/2023 8:49 AM
No.
INVESTEX CREDIT UNION IN THE DISTRICT COURT
Vv. HARRIS COUNTY, TEXAS
ESTATE OF GEORGE HOLMES JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
InvesTex Credit Union (“InvesTex”), complains against the Defendant, Estate of George
Holmes (“Estate”), and shows the following:
1. This is a Level 1 Case for Discovery Control Plan purposes. The damages sought in this
case, which only include monetary relief of $250,000.00 or less, are within the jurisdictional limits
of the court.
Parties
2. InvesTex is a financial institution having offices and conducting business in Humble,
Harris County, Texas.
3. The Estate of George Holmes may be served with process, by having the Clerk issue a writ
of Scire Facias to serve Janice Holmes, the surviving spouse or sister of the Decedent, George
Holmes, at 4522 Connorvale Road, Houston, Texas 77039.
Venue
4. Venue of this matter is proper in Harris County, Texas because either (1) the Decedent
resided in that county on his or her date of death; or (2) the contract was signed in that county; or (3)
all or a substantial part of the events or omissions giving rise to the claims occurred in that county.
Causes of Action
5. George Holmes (“Decedent”) executed a Credit Card Application for a MasterCard or
VISA credit card. This credit card was issued in the name of Decedent and according to the terms
of the Credit Card Application, Decedent agreed to be responsible for the repayment of the credit
extended on this account. InvesTex owns this account and the Decedent and the Estate have
defaulted by failing to make the payments due to InvesTex on this account. This account is now in
default and as of December 5, 2022, a total of $6,131.24 is owed to InvesTex by the Estate on this
account, plus interest accruing thereafter (not to exceed any interest allowed by law) at the rate of
7.90% per annum on the balance of $6,131.24, plus reasonable attorneys fees, and other costs. True
and correct copies of the Credit Card Application along with the recent monthly account statements
are attached as Exhibit “B”. InvesTex has satisfied all conditions precedent to entitle it to collect
the amounts owed on this account. Decedent made promises and representations that these amounts
owed on the account would be repaid. InvesTex relied on these promises and representations in
extending credit to Decedent, and Decedent and the Estate have defaulted and breached the contracts
to pay the amounts owed. Decedent therefore mutually assented with InvesTex, and accepted the
offer made by InvesTex to provide credit, in return for which Decedent promised to pay InvesTex
the amounts owed according to the terms of the account. The Estate is therefore liable by contract
for the amounts owed.
6. An “account stated”, such as the credit card statements sent to the Decedent, is an
agreement between the parties who have had previous transactions of a monetary character, and that
all items of the account representing such transactions, and the balance struck, are correct, together
with a promise, express or implied, for the payment of such balance. Griffith v. Geffen & Jacobsen,
P.C., 693 8.W.2d 724,726 (Tex. App. - Dallas 1985, no writ), citing Eastern Dev. & Inv. Corp. v.
City of San Antonio, 557 8.W .2d 823, 824-825 (Tex. Civ. App. - San Antonio 1977, writ ref’dn.r.e.).
A party can bring a claim for account stated to collect a credit card debt. Busch v. Hudson & Keyse,
LLC, 312 S.W.3d 294, 298 (Tex. App. - Houston [14" Dist.] 2010 no pet.); McFarlandv. Citibank,
293 S.W.3d 759, 764 (Tex. App. - Waco 2009, no pet.).
7. In the alternative, Decedent and the Estate received the benefit of the credit obtained on
the account, including goods and/or services purchased, but the amounts owed on the account remain
unpaid. Asa matter of equity, the Estate would be unjustly enriched if he or she is allowed to retain
the benefits received, without repaying the amounts owed on the account. Decedent willingly
received the benefits of the credit provided by InvesTex. Decedent accepted the benefits of the credit
provided by InvesTex. The Estate is therefore personally liable for the amounts owed, based on
equitable doctrines of quantum meruit and unjust enrichment.
8. InvesTex has not received notice of any probate of the Estate. Janice Holmes is reportedly
living in the home of the Decedent located at 4522 Connorvale Road, Houston, Texas 77039, and
receiving the benefits of this home and other property in the Estate, despite the fact that Janice
Holmes has not paid InvesTex and presumably other creditors.
9. InvesTex therefore has reason to believe that Janice Holmes either has transferred, or
intends to transfer, property of the Estate, including ownership of the home, for less than
“reasonably equivalent value” by the Estate, as that term is defined in §24.004(d), Tex. Bus. Com.
CODE ANN., and that such transfers have been or will be made with actual intent to hinder, delay, or
defraud creditors of the Estate, including InvesTex.
10. In accordance with Chapter 37, TEX. Cry. PRAC. & REM. CODE ANN., InvesTex is
requesting that the Court declare that any such transfers are fraudulent under §24.005 and §24.006,
TEX. BUS. COM. CODE ANN., and that InvesTex is entitled to all relief and remedies available under
in §24.008, TEx. Bus. CoM. CODE ANN.., including avoidance of the transfers to the extent necessary
to satisfy InvesTex’s claims, attachment of the transferred property held in the name of Janice
Holmes, an injunction against further disposition of transferred property by the Defendants,
appointment of a receiver to take charge of the transferred property, and any other relief the
circumstances may require.
11. Because of the failure to pay the amounts owed, InvesTex has been required to employ
legal counsel to represent it in this case. In accordance with Chapters 37 and 38, TEX. CIV. PRAC.
& REM. CoDE ANN., §24.013, TEx. Bus. COM. CODE ANN., and/or under the terms of contractual
agreements, InvesTex is entitled to recover its reasonable and necessary attorneys fees incurred in
this proceeding and as otherwise required to collect the amounts owed
12. The Estate has failed to make regular payments to InvesTex. InvesTex has performed
all conditions precedent for recovery of the amounts owed and for all other relief requested in this
petition.
13. Because of the failure to pay the amounts owed, InvesTex has been required to employ
legal counsel to represent it in this case. In accordance with Chapter 38, Texas Civil Practice and
Remedies Code and/or under the terms of contractual agreements, InvesTex is entitled to recover its
reasonable and necessary attorneys fees incurred in this proceeding and as otherwise required to
collect the amounts owed.
Prayer
Wherefore, InvesTex Credit Union prays that Defendant, the Estate of George Holmes, be
4
cited to appear and answer these claims and that upon final trial, that InvesTex recover a judgment
against the Estate, for the following:
a. the amounts owed as stated above on the credit card account; plus
b. prejudgment and post-judgment interest as allowed by law; plus
reasonable attorneys fees, costs, and such other and further relief to which InvesTex
may be entitled either at law in equity.
Respectfully submitted,
Goodwin & Harrison, LLP.
LLU ) Petri
J&h M. Harrison
State Bar No. 09116300
P.O. Box 8278
The Woodlands, Texas 77387-8278
(281) 363-3136
Fax: (281) 363-3215
Email: josh@goodwin-harrison.com
Attorneys for InvesTex Credit Union
Preview
5/16/2023 8:49 AM Marilyn Burgess - District Clerk Harris County 2023-30201 / Court: 295 Envelope No. 75666521 By: Chandra Lawson Filed: 5/16/2023 8:49 AM No. INVESTEX CREDIT UNION IN THE DISTRICT COURT Vv. HARRIS COUNTY, TEXAS ESTATE OF GEORGE HOLMES JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION InvesTex Credit Union (“InvesTex”), complains against the Defendant, Estate of George Holmes (“Estate”), and shows the following: 1. This is a Level 1 Case for Discovery Control Plan purposes. The damages sought in this case, which only include monetary relief of $250,000.00 or less, are within the jurisdictional limits of the court. Parties 2. InvesTex is a financial institution having offices and conducting business in Humble, Harris County, Texas. 3. The Estate of George Holmes may be served with process, by having the Clerk issue a writ of Scire Facias to serve Janice Holmes, the surviving spouse or sister of the Decedent, George Holmes, at 4522 Connorvale Road, Houston, Texas 77039. Venue 4. Venue of this matter is proper in Harris County, Texas because either (1) the Decedent resided in that county on his or her date of death; or (2) the contract was signed in that county; or (3) all or a substantial part of the events or omissions giving rise to the claims occurred in that county. Causes of Action 5. George Holmes (“Decedent”) executed a Credit Card Application for a MasterCard or VISA credit card. This credit card was issued in the name of Decedent and according to the terms of the Credit Card Application, Decedent agreed to be responsible for the repayment of the credit extended on this account. InvesTex owns this account and the Decedent and the Estate have defaulted by failing to make the payments due to InvesTex on this account. This account is now in default and as of December 5, 2022, a total of $6,131.24 is owed to InvesTex by the Estate on this account, plus interest accruing thereafter (not to exceed any interest allowed by law) at the rate of 7.90% per annum on the balance of $6,131.24, plus reasonable attorneys fees, and other costs. True and correct copies of the Credit Card Application along with the recent monthly account statements are attached as Exhibit “B”. InvesTex has satisfied all conditions precedent to entitle it to collect the amounts owed on this account. Decedent made promises and representations that these amounts owed on the account would be repaid. InvesTex relied on these promises and representations in extending credit to Decedent, and Decedent and the Estate have defaulted and breached the contracts to pay the amounts owed. Decedent therefore mutually assented with InvesTex, and accepted the offer made by InvesTex to provide credit, in return for which Decedent promised to pay InvesTex the amounts owed according to the terms of the account. The Estate is therefore liable by contract for the amounts owed. 6. An “account stated”, such as the credit card statements sent to the Decedent, is an agreement between the parties who have had previous transactions of a monetary character, and that all items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance. Griffith v. Geffen & Jacobsen, P.C., 693 8.W.2d 724,726 (Tex. App. - Dallas 1985, no writ), citing Eastern Dev. & Inv. Corp. v. City of San Antonio, 557 8.W .2d 823, 824-825 (Tex. Civ. App. - San Antonio 1977, writ ref’dn.r.e.). A party can bring a claim for account stated to collect a credit card debt. Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298 (Tex. App. - Houston [14" Dist.] 2010 no pet.); McFarlandv. Citibank, 293 S.W.3d 759, 764 (Tex. App. - Waco 2009, no pet.). 7. In the alternative, Decedent and the Estate received the benefit of the credit obtained on the account, including goods and/or services purchased, but the amounts owed on the account remain unpaid. Asa matter of equity, the Estate would be unjustly enriched if he or she is allowed to retain the benefits received, without repaying the amounts owed on the account. Decedent willingly received the benefits of the credit provided by InvesTex. Decedent accepted the benefits of the credit provided by InvesTex. The Estate is therefore personally liable for the amounts owed, based on equitable doctrines of quantum meruit and unjust enrichment. 8. InvesTex has not received notice of any probate of the Estate. Janice Holmes is reportedly living in the home of the Decedent located at 4522 Connorvale Road, Houston, Texas 77039, and receiving the benefits of this home and other property in the Estate, despite the fact that Janice Holmes has not paid InvesTex and presumably other creditors. 9. InvesTex therefore has reason to believe that Janice Holmes either has transferred, or intends to transfer, property of the Estate, including ownership of the home, for less than “reasonably equivalent value” by the Estate, as that term is defined in §24.004(d), Tex. Bus. Com. CODE ANN., and that such transfers have been or will be made with actual intent to hinder, delay, or defraud creditors of the Estate, including InvesTex. 10. In accordance with Chapter 37, TEX. Cry. PRAC. & REM. CODE ANN., InvesTex is requesting that the Court declare that any such transfers are fraudulent under §24.005 and §24.006, TEX. BUS. COM. CODE ANN., and that InvesTex is entitled to all relief and remedies available under in §24.008, TEx. Bus. CoM. CODE ANN.., including avoidance of the transfers to the extent necessary to satisfy InvesTex’s claims, attachment of the transferred property held in the name of Janice Holmes, an injunction against further disposition of transferred property by the Defendants, appointment of a receiver to take charge of the transferred property, and any other relief the circumstances may require. 11. Because of the failure to pay the amounts owed, InvesTex has been required to employ legal counsel to represent it in this case. In accordance with Chapters 37 and 38, TEX. CIV. PRAC. & REM. CoDE ANN., §24.013, TEx. Bus. COM. CODE ANN., and/or under the terms of contractual agreements, InvesTex is entitled to recover its reasonable and necessary attorneys fees incurred in this proceeding and as otherwise required to collect the amounts owed 12. The Estate has failed to make regular payments to InvesTex. InvesTex has performed all conditions precedent for recovery of the amounts owed and for all other relief requested in this petition. 13. Because of the failure to pay the amounts owed, InvesTex has been required to employ legal counsel to represent it in this case. In accordance with Chapter 38, Texas Civil Practice and Remedies Code and/or under the terms of contractual agreements, InvesTex is entitled to recover its reasonable and necessary attorneys fees incurred in this proceeding and as otherwise required to collect the amounts owed. Prayer Wherefore, InvesTex Credit Union prays that Defendant, the Estate of George Holmes, be 4 cited to appear and answer these claims and that upon final trial, that InvesTex recover a judgment against the Estate, for the following: a. the amounts owed as stated above on the credit card account; plus b. prejudgment and post-judgment interest as allowed by law; plus reasonable attorneys fees, costs, and such other and further relief to which InvesTex may be entitled either at law in equity. Respectfully submitted, Goodwin & Harrison, LLP. LLU ) Petri J&h M. Harrison State Bar No. 09116300 P.O. Box 8278 The Woodlands, Texas 77387-8278 (281) 363-3136 Fax: (281) 363-3215 Email: josh@goodwin-harrison.com Attorneys for InvesTex Credit Union