M E M O R A N D U M O P I N I O N

In this suit to collect a credit-card debt, debtor Celia Barajas asks us to reverse the traditional summary judgment granted in favor of the creditor’s assignee, appellee Harvest Credit Management, VI-B, LLC (“Harvest”). Because Harvest failed to establish its entitlement to judgment on its contract claim as a matter of law, we reverse and remand.

I. Factual and Procedural Background

Celia Barajas received, signed, and returned an application for a credit card from Metris Direct Merchants Bank (“Metris”). Metris issued her a credit card, and Barajas accepted and agreed to the terms and conditions associated with its use. Under the terms of the account, Barajas was required to pay in full for all charges incurred through her use of the credit card.

Harvest, in its asserted capacity as Metris’s assignee, subsequently sued Barajas for her alleged indebtedness on the account. The trial court granted traditional summary judgment in Harvest’s favor, and this appeal ensued.

II. Issue Presented

In her sole issue on appeal, Barajas contends the summary judgment in favor of Harvest should be reversed because (a) some of the exhibits offered in support of the motion are defective and are not competent summary judgment evidence, and (b) no other evidence supports the summary judgment.

III. Standard of Review

We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). To prevail on a summary judgment motion, the movant must establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). Once the movant establishes a right to judgment as a matter of law, the burden shifts to the non?movant to produce evidence raising a genuine issue of material fact. Id.; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678B79 (Tex. 1979). In our review, we take as true all evidence favorable to the non?movant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

IV. Analysis

Barajas asserts that Harvest failed to prove that she Amade purchases and cash advances on [the] credit card, and the items, dates, amounts, and [these] were made [sic] signed for or by@ her. In connection with this argument, we note that in her statement of facts, Barajas made the uncontroverted assertion that Ano agreement has been introduced to establish what terms and conditions Appellant agreed to by accepting and using the Card to purchase various goods, wares, merchandise, services, or to take cash advances.@[1]

To be entitled to summary judgment on its breach-of-contract claim, Harvest was required to prove, as a matter of law, the following essential elements of its claim:

• the existence of a valid contract,
• performance or tendered performance by the plaintiff,
• breach of contract by the defendant, and
• damages sustained as a result of the breach.

See Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.CHouston [1st Dist.] 2007, no pet.).

Parties form a binding contract when the following elements are present:

• an offer,
• an acceptance in strict compliance with the terms of the offer,
• 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. Id.

To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties. Id. (citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992)). The material terms of a contract must be agreed upon before a court can enforce the contract. See T.O. Stanley Boot, 847 S.W.2d at 221 (holding that interest rate is material term in context of contract to loan money).

Here, Harvest’s summary-judgment evidence did not include the actual agreement or any other evidence that established the agreed terms, including the applicable interest rate or the method for determining the applicability and amount of finance charges. Harvest also produced no evidence regarding any transactions or cash advances associated with the account or any statements issued to Barajas. Moreover, statements contained in affidavits offered in support of Harvest’s motion for summary judgment conflict with Harvest’s representations in its pleadings and in its summary-judgment motion. For example, Harvest attached two documents to its original petition. The first document is identified by Harvest as an affidavit by Martin Ravin, Harvest’s general manager, in which he stated that the interest rate applicable to Barajas’s account is 23.9%. The second document is entitled ADirect Merchants Credit Card Bank Last Statement Details,@ and identifies the applicable interest rate as 29.99%. As summary-judgment evidence,[2] however, Harvest attached David Ravin’s affidavit, in which he asserted that Barajas’s indebtedness includes interest at an unspecified Alegal rate.@

The summary-judgment motion and evidence also presented conflicting statements regarding the basis for the alleged indebtedness. Contrary to the representations in its pleadings and summary-judgment motion that Harvest purchased the account from Metris, Harvest’s summary-judgment evidence includes David Ravin’s statement that Harvest Ais the original and current owner and holder of the account.@ (emphasis added).[3] He further represented that ADefendant became obligated to Plaintiff on this debt by purchasing items of goods, wares, merchandise, or services sold to the Defendant by Plaintiff and for which Plaintiff sues. @ (emphasis added).

We conclude that the evidence offered in support of Harvest’s motion for traditional summary judgment presents questions of material fact and is insufficient to establish the terms of a valid contract as a matter of law. See Williams v. Unifund CCR Partners Assignee of Citibank, BS.W.3dB, No. 01-06-00927-CV, 2008 WL 339855, at *4 (Tex. App.CHouston [1st Dist.] Feb. 7, 2008, no pet.) (reversing summary judgment where the creditor failed to produce evidence establishing the contract’s terms). We therefore sustain Barajas’s sole issue on appeal.

V. Conclusion

Because Harvest failed to carry its summary-judgment burden, we reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed August 28, 2008.

Panel consists of Justices Frost, Seymore, and Guzman.

VI. Footnotes

[1] See Tex. R. App. P. 38.1(f) (AIn a civil case, the court will accept as true the facts stated unless another party contradicts them.@). Further, Barajas’s statement of facts is consistent with her answers to requests for admissions, which she filed as an attachment to her answer to Harvest’s petition in the trial court. There, she admitted that she applied to Metris for a credit card; that her application was approved; and that she accepted and agreed to the terms and conditions associated with the credit card account, including terms requiring her to pay Metris in full for all charges incurred by her use of the card. See Tex. R. Civ. P. 166a(c) (trial court considers pleadings and admissions of the parties in rendering summary judgment).

[2] The exhibits Harvest offered in support of its motion for summary judgment include:

A. Defendant’s Original Answer and Original Cross-Complaint, with attached Affidavit of Celia Barajas;

B. Two Affidavits by David Ravin;

C. A computer print-out of the amounts alleged by Harvest as the original claim amount, interest, and total amount due;

D. Affidavit of Harvest’s attorney regarding attorneys’ fees;

E. A demand letter from Harvest’s attorney to Celia Barajas, dated December 12, 2005; and

F. A computer print-out of the text of 15 U.S.C.A. ‘ 1666.

Barajas argues that an unidentified exhibit is A[n]ot a copy of agreement indicating terms, conditions, and attorneys[‘] fees.@ In support of her position that such particulars must be included with these exhibits, Barajas relies solely on Guthrie v. Suiter. 934 S.W.2d 820, 824B25 (Tex. App.CHouston [1st Dist.] 1996, no writ). In Guthrie, the First Court of Appeals applied Texas Rule of Civil Procedure 166a(f), and held that the trial court did not abuse its discretion in refusing to consider an expert-opinion affidavit in which the expert referred to documents that were not attached to or filed with the affidavit. Id. (citing Tex. R. Civ. P. 166a(f)). Rule 166a(f) provides in pertinent part that A[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.@ Tex. R. Civ. P. 166a(f) (emphasis added). Here, Exhibits C, E, and F are not affidavits and do not refer to other papers; hence, Guthrie’s application of Rule 166a(f) does not apply to them.

Exhibit B, however, contains two affidavits by Harvest employee David Ravin. In the first of these, Ravin states that he is the custodian of Harvest’s records, but he makes no reference to any of Harvest’s records. The only documents referred to in this affidavit are Harvest’s motion for summary judgment, and Harvest’s original petition. Both of these documents were filed with the court and served on Barajas, and the affidavit was attached to the motion for summary judgment. In his second affidavit, the only document to which Ravin refers is Barajas’s answer, and a copy of the answer was served with the affidavit and the motion for summary judgment. Thus, neither the reasoning in Guthrie nor the text of Rule 166a(f) requires the exclusion of these affidavits.

[3] Barajas did not argue, at trial or on appeal, that the affidavits were improperly attested or failed to demonstrate how the affiant obtained personal knowledge of the facts recited therein.