HOUSTON – The 14th Court of Appeals has affirmed the dismissal of a lawsuit that sought thousands of dollars in mental anguish damages for a $60 fee after a $10 check was returned.
The lawsuit was brought by Todd Smith, who owns a condo at 2016 Main Street.
His owners’ association, defendant 2016 Main Owners Association, charged him a $10 fee to replace the key card he used to enter the building. Smith’s girlfriend wrote a check for the $10 fee, but the check was returned, so the association charged him $61.65 in returned check fees.
Court records show Smith paid the fees but then sued seeking thousands of dollars in mental anguish damages under the Texas Debt Collection Act, alleging that the association was bullying him.
The association in turn moved for summary judgment, which the trial court granted, leading to the appeal.
According to the 14th Court’s Sept. 29 opinion, Smith’s first claim under the Texas Debt Collection Act was based on a section prohibiting a debt collector from using unfair or unconscionable means in collecting or attempting to collect a fee unless it is “expressly authorized by the agreement creating the obligation” or “legally chargeable to the consumer.”
“The evidence conclusively showed that the fee charged to Plaintiff was both expressly authorized by the parties’ agreement and legally chargeable to him,” the opinion states. “Defendant presented evidence in multiple forms showing that it attempted to deposit Plaintiff’s girlfriend’s check but that the check was returned by her bank.
“That evidence creates a presumption that the check was returned. Plaintiff did not rebut that presumption.”
Justices found that both Texas law and the parties’ agreement allow the association to charge “returned check charges,” and both require Smith as a condominium owner to pay properly levied charges.
“The trial court therefore properly granted summary judgment on Plaintiff’s first claim,” the opinion states, adding that Smith’s second claim of misleading representation also fails.
“Plaintiff has failed to raise a fact issue regarding a fraudulent, deceptive, or misleading representation by Defendant. We affirm the trial court’s summary judgment.”
Appeals case No. 14-25-01150-CV
