Unifund CCR Partners VS Felicia Dianne Perkins

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCL IT NO 2012 CA 1851 UNIFUND CCR PARTNERS VERSUS FELICIA DIANNE PERKINS v ry i JudgmentRendered SEP 2 5 ZO 3 r On Appeal from the 19 7udicial District Court In and for East Baton Rouge Parish State of Louisiana Trial Court No 564 679 The Honorable Timothy E Kelley Judge Presiding Benjamin G Lambert New Orleans Louisiana Attorney for Plaintiff Appellee Garth J Attorney for Defendant Appellant Baton Felicia Dianne Perkins Ridge Rouge Louisiana Unifund CCR Partners x BEFORE WF C WELCH AND CRAIN JJ PPLE J CRAIN J In this suit to collect a balance owed on a credit card the trial court granted a summary judgment in favor of plaintiff Unifund CCR Partners We reverse and remand FACTS AND PROCEDURAL HISTORY Unifund sued Felicia Dianne Perkins alleging that Perkins entered into an agreement with Unifund or its assignor to obtain goods or services on open account through the use of a credit card Unifund further alleged that Perkins breached the agreement and owed the principal amount of 4plus interest 60 829 and attorney sfees After Perkins answered denying the allegations Unifund moved for a summary judgment and attached three e to its motion and supporting ibits memorandum 1 the affidavit of Kim Kenney 2 a monthly billing statement in Perkins name indicating a balance due of 4 and 3 a demand letter from 60 829 counsel for Unifund to Perkins Perkins opposed the motion with an affidavit attesting that she has no knowledge of ever having the credit card sued upon and that she did not know who opened this account if it was ever opened in her name and if done so it was done without her knowledge authorization or permission Although the parties dispute the extent of any additional evidence that was offered at the hearing of the motion the trial court found that Unifund established the debt and that Perkin affidavit was self and insufficient to defeat the s serving summary judgment A judgment was signed in favor of Unifund and against The defendanYs middle name is spelled Dianne in the plaintiff petirion the defendanYs s answer and in the judgment however based upon her affidavit the correct spelling of her middle name is Dionne 2 Perkins for the amount deznanded plus interest attorney fees of 25 of the s principal and interest and all costs Perkins appeals arguing that the trial court erred by granting the summary judgment when the claim was disputed by Perkins in her affidavit Perkins also asserts that Kenney affidavit was not b on personal knowledge the s sed documents attached thereto were not verihed and that Unifund failed to prove the amount owed that it owned the debt or tkie applicable interest rate MOTION TO STRIKE We first address the contents of the record before this court and a motion to strike filed on behalf of Perkins The transcript of the hearing of the motion for summary judgment reflects that Unifund offered and introduced the entire record which it represented should contain several account statements a bill of sale and a certificate confirming transfers of the account from the original issuer of the credit card to Unifund During argument counsel for Unifund also referenced but did not offer into evidence interrogatories and admissions of fact None of these documents were included in the record originally lodged with this court Pursuant to a motion to supplement the record filed by Unifund the trial court ordered the record supplemented to include these items Perkins responded in this court by filing a motion to strike the documents asserting that they were not admitted into evidence in the trial court and do not form a part of the record on appeal Louisiana Code of Civil Procedure article 2132 authorizes the correction of a recard on appeal that is incorrect or contains misstatements irregularities or informalities or which omits a material part of the trial record however the record should not be supplemented with a documeprt that was never offered introduced or admitted into evidence See Williams Law Firm v Board of Z The three previously identified exhibits attached to Unifund smotion for summazy judgment are in the original record lodged with this court and aze not the subject of the motion to strike 3 Supervisor of Louisiana State UniversiPy Q3 La App 1 Cir 4 878 0079 04 2 So 2d 557 562 Counsel for Unifund argues that the documents were offered into evidence at the hearing and should be included in the record The transcript of the hearing does not confirm that assertion Rather the transcript reflects that counsel offered and introduced the entire record and generally identified various documents that should be contained in the record However there is no indication that these documents were actually in the suit record at that time nor did counsel separately offer and introduce the documents into evidence The minute entry for the hearing indicates only that d evidence was introduced without any ocumentary identification of the documents Accarding to the record originally lodged with this court the suit record at the time of the hearing contained only Unifund single s page unverified petition two unanswered requests for admissions of fact Perkins answer to the petition and the motion for summary judgment supporting memorandum and the three e attached thereto These documents make no ibits reference to the ethat Unifund later added to the record through the motion chibits to supplement Absent some evidence that the subject documents were separately introduced at the hearing ar that they were contained in the suit record when counsel introduced the entire recard at the hearing the recard on appeal should not have been supplemented to include these exhibits This court cannot consider evidence that was not part of the record made in the trial court We grant the motion to strike and order the supplemented documents removed from the record See Williams Law Firm 878 So 2d at 562 after reviewing the record and transcript of the hearing the court granted the motion to strike an e that was ibit never offered introduced or admitted into evidence 4 LAW AND ANALYSIS A motion for summary judgment may be granted if and only if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law La Code Civ Pro art 966B priar to amendment by 2012 La Acts No 257 Louisiana High School Athletics Association Inc v State 12 La 1 107 So 3d 583 598 1471 13 29 The party seeking summary judgment has the burden of proving there is no genuine issue of material fact La Code Civ Pro art 966C If the movant satisfies the initial burden the burden shifts to the party opposing summary judgment to present factual support sufficient to show he will be able to satisfy the evidentiary burden at trial La Code Civ Pro art 966C Suire v Lafayette 2 Parish City Consolidated Government 04 La 4 907 So 2d 37 56 1459 OS 12 Since Unifund would have the burden of proof at trial it had the burden to show there were no genuine issues of material fact and that it was entitled to judgment as a matter of law See Louisiana High School Athletics Association Inc 107 So 3d at 599 Appellate courts review evidence de novo under the same criteria that govern the trial court determination of whether a summary judgment is s appropriate All Crane Rental of Georgia Inc v Vincent 10 La App 1 0116 Cir 9 47 So 3d 1024 1027 writ denied 10 La 11 49 So 10 10 2227 10 19 3d 387 An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate whether there is any genuine issue of material fact and whether the mover is entitled to appellant judgment as a matter of law All Crane Rental ofGeorgia Inc 47 So 3d at 1027 3 The judgment on appeal was signed on November 8 2010 and is therefore governed by the version of Article 966 in effect prior to its amendment in 2012 5 Suits to collect credit card debt are treated as suits on an open account See Capital One Bank USA NA v Galan 12 La App 1 Cir 11 0246 12 14 unpublished 2012 WL 5506591 Capital One Bank USA NA v Sanches 13 0003 13 12 La App 4th Cir 6 So 3d To establish a prima facie case the creditor must prove that the record of the account was kept in the course of business and introduce evidence regarding its accuracy Once a creditor prevails in establishing its prima facie case the burden shifts to the debtar to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits s Hat Equipment Inc v WHM L 11 La App 1 Cir 5 92 So 3d C 1982 12 4 1072 1076 Unifund relies primarily upon Kenney affidavit to establish the account s balance and Unifund s right to collect it We find that the affidavit is not competent evidence for use in support of a motion for summary judgment Louisiana Code of Civil Procedure article 967A provides in pertinent part Supporting and opposing affidavits shall be made on personal knowledge shall set forth such facts as would be admissible in evidence and sha11 show affirmatively that the affiant is competent to testify to the matters stated therein Personal knowledge encompasses only those facts that the affiant saw heard or perceived with his own senses Berard v L Communications VeYtex Aerospace 3 LLC 09 La App 1 Cir 235 So 3d 334 349 writ denied 10 1202 10 12 0715 La 638 So 3d 302 10 4 While Kenney affidavit contains the assertion that she has personal s knowledge and that she is competent to testify to the matters stated herein the affidavit contains no facts or information setting forth the basis of either her personal knowledge or her competency to testify to the matters stated in the affidavit The affidavit does not identify her position of employment if any with Unifund nor does it disclose if she has ever reviewed any documentation or 6 records with respect to the account nor does it verify or refer to any documents as being attached to the affidavit Rather Kenney simply identifies the account by number and states that the sum of 5 is due and payable from Perkins 23 367 The only other substantive information in the affidavit is a statement that the account was issued under the name of FIRST USA BANK NA and acquired from Chase Bank USA NA and was thereafter forwarded to counsel for Unifund far collection Again no basis for this information is provided and no documents are referenced or attached Article 96Ts requirement of personal knowledge is not satisfied by the mere statement that the affidavit is made on personal knowledge since that would tend to make the affiant both judge and witness Benoit v Burger Chef Systems of Lafayette Inc 257 So 2d 439 441 La App 1 Cir 1972 The requirement that the affidavit show affirmatively that the affiant is competent to testify to the matters stated therein enables the court to make a determination as to the competency ofthe affiant as a witness to the material fact at issue Benoit 257 So 2d at 441 without a An affirmative showing of competency cannot be established predicate showing of personal knowledge Otherwise personal knowledge may be based on hearsay or other incompetent evidence Benoit 257 So 2d at 441 s Kenney affidavit fails to establish any predicate fact showing that she has personal knowledge of the subject account and is competent to testify to the matters set forth in the affidavit Therefore the affidavit does not satisfy the requirements of Article 967A is not competent summary judgment evidence and will not be considered by this court on de novo review See Robertson v Doug Ashy Building Materials Inc 10 La App 1 Cir 10 77 So 3d 339 1552 11 4 350 fn 15 writs denied ll 11 La 177 So 3d 972 2468 2430 12 13 973 7 The remaining exhibits attached to the motion for summary judgment are the unsworn and unverified monthly account billing statement and the demand letter Louisiana Code of Civi1 Procedure articles 966 and 967 do not permit a party to use unsworn and unverified documents as summary judgment evidence A document that is not an affidavit or sworn to in any way or is not certified or attached to an affidavit has no evidentiary value on a motion for summary judgment Bunge North America Inc v Board of Commerce Industry 07 1746 La App 1 Cir 5 991 So 2d 511 527 writ denied 08 La 11 08 2 1594 08 21 996 So Zd 1106 In meeting the burden of proof unsworn or unverified documents such as letters or reports annexed to motions for summary judgment are not self and will not be considered attaching such documents to a proving motion for summary judgment does not transform them into competent summary judgment evidence Bunge North America Inc 991 So 2d at 527 Based upon the foregoing the unsworn and unverified monthly billing statement and demand letter relied upon by Unifund are not competent summary judgment evidence and will not be considered by this court on de novo review Although Unifund also introduced the entire record at the hearing of the motion the only additional documents in the record were the petition two unanswered requests for admissions of fact and Perkins answer to the petition These pleadings reflect disputed allegations and do not establish any material facts The exclusion of the tl e attached to the motion for summary ree chibits judgment together with the lack of any other documentation in the record proving any material facts renders Unifund motion for summary judgment unsupported s by any evidence Unifund failed to satisfy its burden of proving the account and the accuracy of the amount due judgment to Unifund and The trial court erred in granting a summary we reverse that judgment See Sunches So 3d at summary judgment was not proper in suit to collect credit card indebtedness s where affidavit failed to adequately establish account and authenticate account documents CONCLUSION For the foregoing reasons we reverse the judgment f the trial court granting a summary judgment in favor of iJnifund CCR Partners and remand for further proceedings All costs of this appeal are assessed to Unifund REVERSED AND REMANDEA 4 In light of this holding we pretermit discussion of Perkins remaining assignments of error 9

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