The drawer sued the bank in a class action “on behalf of herself and Classes of all other Texas Citizens similarly situated.” In her petition, the drawer alleged that the bank improperly imposed overdraft fees on authorized transactions from debit cards with sufficient funds and that the bank charged multiple fees on the same item. The drawer claimed that the bank’s actions breached the account agreement. The bank moved to compel arbitration under the account agreement, arguing that the drawer’s claims were subject to arbitration. In response, the drawer asserted that the arbitration clause was “illusory and unenforceable” because the “Amendments and Alterations” clause in the account agreement permitted the bank to “retroactively modify or eliminate the arbitration clause.” The drawer also argued that because the bank sought to compel arbitration, it bore the burden to show the existence of an enforceable arbitration clause. The bank did not reply to the drawer’s response and cited time constraints as the reason for its failure to do so. The trial court held a hearing on the motion to compel arbitration, though no record existed of the hearing, and the court denied the motion without stating its grounds. The bank argued on appeal that the trial court erred by denying its motion to compel arbitration based on the alleged illusory nature of the arbitration provision.
In Citizens Nat’l Bank of Tex. v. Wiggins, No. 05-25-00397-CV, 2025 WL 3619385, 2025 Tex. App. LEXIS 9557 (Tex. App.—Dallas Dec. 12, 2025) (opinion not yet released for publication), the court affirmed the denial of the bank’s motion to stay proceedings and compel arbitration. The court based its holding on two key procedural deficiencies: (1) that the bank did not submit a response to the drawer’s trial court claims regarding the illusory nature of the arbitration clause, and (2) that the reporter’s record of the court proceeding does not exist to show any arguments raised in the hearing. The bank had the burden of proof to show that it presented the issue to the trial court and either obtained a ruling or objected to the court’s failure to rule. The court concluded that, because no reporter’s record existed and the bank failed to show it raised these arguments below, the missing record was presumed to have supported the trial court’s ruling. Under that presumption, the court overruled the bank’s issue on appeal and affirmed the trial court order.
By Taylor O’Brien [email protected]
Edited By Noah Coggan [email protected]
Edited By Landon Womack [email protected]