Opinion
No. 1 CA-CV 15-0066
03-24-2016
PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff/Appellee, v. SHERRY ROBERTSON, Defendant/Appellant.
COUNSEL Guglielmo & Associates, Tucson By Christopher N. Kalabus, Paul D. Guglielmo, David J. Mittleman and John A. Daddona Counsel for Plaintiff/Appellee Sherry Robertson, Phoenix Defendant/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2014-092272
The Honorable David M. Talamante, Judge
AFFIRMED
COUNSEL Guglielmo & Associates, Tucson
By Christopher N. Kalabus, Paul D. Guglielmo, David J. Mittleman and
John A. Daddona
Counsel for Plaintiff/Appellee Sherry Robertson, Phoenix
Defendant/Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge John C. Gemmill and Judge Margaret H. Downie joined. GOULD, Judge:
¶1 Sherry Robertson ("Robertson") appeals from the trial court's order granting summary judgment in favor of Portfolio Recovery Associates, LLC ("Portfolio"). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Portfolio sued Robertson for the unpaid balance due on a credit card account Portfolio acquired from CitiBank, N.A. ("Citibank"). Portfolio filed a motion for summary judgment seeking payment for the principal amount owed on the account. Robertson responded, and also filed a cross-motion for summary judgment, asserting (1) Portfolio's claim was barred by the statute of limitations and (2) Portfolio failed to prove she owned the account.
¶3 The trial court granted Portfolio's motion and denied Robertson's cross-motion. Robertson timely appealed.
DISCUSSION
I. Standard of Review
¶4 We review a grant of summary judgment de novo to determine "whether there are any genuine issues of material fact and whether the trial court erred in applying the law." Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 14 (App. 2012). In our review, "we view the facts in the light most favorable to the non-moving party." Id.
II. Business Records
¶5 Robertson argues the trial court erred in granting Portfolio's motion for summary judgment because it was based on inadmissible hearsay. Robertson claims the affidavits submitted by Portfolio's custodian of records, Samaria Braswell, and its "authorized agent," Shirley Garcia, did not qualify as business records under Arizona Rule of Evidence 803(6). Specifically, Robertson asserts both affiants lacked personal knowledge regarding the preparation and reliability of Citibank's business records.
¶6 We review a trial court's determination on the admissibility of evidence for an abuse of discretion. Mohave Elec. Co-op., Inc. v. Byers, 189 Ariz. 292, 301 (App. 1997). "An affidavit used to support or oppose a motion [for summary judgment] shall be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Ariz. R. Civ. P. 56(e).
¶7 The business records exception to the hearsay rule requires a party to establish, through "either the custodian of records or 'other qualified witness,'" that the "record was made 1) contemporaneously, or nearly so, with the underlying event; 2) 'by, or from information transmitted by, a person with first-hand knowledge acquired in the course of a regularly conducted business activity;' 3) completely in the course of that activity; and 4) as a regular practice for that activity." State v. McCurdy, 216 Ariz. 567, 571-72, ¶ 9 (App. 2007); Ariz. R. Evid. 803(6).
¶8 A business may incorporate the business records of a third party when it "regularly relies on the information that third parties submit as part of their ordinary course of business." State v. Parker, 231 Ariz. 391, 401-02, ¶ 33 (2013). However, simply adopting or incorporating the records of a third party is not, by itself, sufficient to qualify the records as business records: the court must also determine whether there are "other strong indicia of reliability." Air Land Forwarders, Inc. v. U.S., 172 F.3d 1338, 1344 (Fed.Cir. 1999). Accordingly, business records that "indicate a lack of trustworthiness or lack an appropriate foundation shall not be admitted." McCurdy, 216 Ariz. at 572, ¶ 9.
¶9 Here, Garcia and Braswell avow: (1) CitiBank assigned its interest in Robertson's account and transferred its electronic records to Portfolio; (2) they reviewed the business records transferred to Portfolio from CitiBank; and (3) CitiBank's records were received and integrated into Portfolio's business records in the ordinary course of business. Garcia further avows that in making her affidavit, she specifically reviewed the itemized billing statements for Robertson's account attached to her affidavit.
¶10 Standing alone, Garcia and Braswell's affidavits may have been insufficient to qualify the subject records as business records. However, we need not reach this issue because Portfolio's motion for summary judgment was also supported by the affidavit of Douglas Morrison, the Financial Account Manager of Citibank. Morrison avows in his affidavit that he has "access to [Citibank's] books and records and [is] aware of the process of sale of accounts and electronic storage of business records." Morrison also states that he is aware electronic records for certain "charged-off accounts" were transferred to Portfolio, and that these "records were kept in the ordinary course of business" by Citibank. In conjunction with this affidavit, Portfolio also submitted a separate statement by Morrison entitled "Bill of Sale and Assignment." This document, and the attached electronic file - a portion of which was printed and attached to Portfolio's motion - identifies Robertson's account as one of the charged-off accounts transferred to Portfolio.
¶11 Accordingly, based on the affidavits of Braswell, Garcia, and Morrison, as well as the records attached to their affidavits, we conclude the statements submitted by Portfolio qualified as business records.
III. Proof of Debt
¶12 Robertson next claims the court erred in determining she was the owner of the subject account because Portfolio failed to produce a signed credit card agreement between her and CitiBank.
¶13 The record supports the trial court's ruling. Attached to the affidavits of Braswell and Garcia were monthly statements addressed to Robertson showing her use of and partial payments on the subject account. These billing statements are sufficient to prove a contractual relationship existed between CitiBank and Robertson. Owens v. M.E. Schepp Ltd. P'ship, 218 Ariz. 222, 226, ¶ 16 (2008). In addition, the principal amount of Robertson's debt was properly established through these billing statements. A.R.S. § 44-7804 (billing statements are evidence of the amount of debt). Finally, Morrison's affidavit and Bill of Sale and Assignment show that CitiBank validly assigned and transferred Robertson's account to Portfolio.
IV. Statute of Limitations
¶14 Finally, Robertson argues Portfolio's claim was time-barred. Robertson contends Portfolio's claim was based on either an open account or an oral debt; as a result, it was subject to the three-year statute of limitations set forth in A.R.S. § 12-543. Thus, according to Robertson, because the claim accrued in October 2010, the statute of limitations had expired when Portfolio filed its lawsuit in March 2014.
Portfolio does not dispute the fact the claim accrued in October 2010, which was the date of Robertson's breach of the credit card agreement, i.e., the first month Robertson failed to make her payment. --------
¶15 We conclude Portfolio's claim was timely filed because it was governed by the six-year statute of limitations set forth in A.R.S. § 12-548, not the three-year statute of limitations listed in A.R.S. § 12-543. Specifically, A.R.S. § 12-548(A)(2) provides a six year statute of limitations "if the indebtedness is evidenced by or founded on . . . a credit card." Here, the record clearly shows that Portfolio's claim was "evidenced by or founded on ... a credit card." See supra, ¶¶ 5-13.
CONCLUSION
¶16 For the reasons above, we affirm the trial court's grant of summary judgment in favor of Portfolio.