CAVALRY PORTFOLIO SERVICES, LLC v. KUMBARISDocket No. A-2062-10T4.
CAVALRY PORTFOLIO SERVICES, LLC, as assignee of CAVALRY SPV I, LLC, as assignee of RIVERWALK HOLDINGS, LTD, as assignee of WASHINGTON MUTUAL BANK, Plaintiff-Appellant,
HARRY J. KUMBARIS, Defendant-Respondent.
HARRY J. KUMBARIS, Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Submitted October 12, 2011.
Decided December 7, 2011.
Choi Law Offices, PLLC, attorneys for appellant ( Shayan Farooqi, of counsel and on the brief). Needleman and Pisano, attorneys for respondent ( Frank Pisano, III, on the brief).
Before Judges Messano and Yannotti.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Cavalry Portfolio Services, LLC, appeals from judgment entered in favor of defendant, Harry J. Kumburis, dismissing plaintiff's complaint following a trial in the Law Division, Special Civil Part. We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand for a new trial.
On August 2, 2010, plaintiff filed a complaint alleging it was the ultimate assignee of a consumer credit contract between defendant and Washington Mutual Savings Bank (WaMu), and that defendant was in breach of that contract. The complaint alleged defendant owed $14,671.10, plus additional interest.
Before any testimony, the judge inquired whether plaintiff's witness, Cynthia Sharpe, "ha[d] personal knowledge of the business records of the underlying creditor," i.e., WaMu. Plaintiff's counsel responded that Sharpe did, citing "monthly statements . . . that were furnished by [WaMu]." Defendant objected noting he was disputing only "$7,000 of the [debt]."
The colloquy between plaintiff's counsel and the judge continued regarding the admission of monthly credit card statements in defendant's name:
Plaintiff's counsel stated his intention to "proceed without admitting the statements into evidence," and "leave it to the defendant to introduce them into evidence." The judge responded, "He doesn't have to testify." Defendant moved for dismissal, but the judge denied the request as premature. We discern from an unrecorded recess reflected in the transcript that the parties were directed to a mediator, but the effort was unsuccessful.
Sharpe was sworn and testified that she was plaintiff's "custodian of records, and a legal adjuster." She explained that plaintiff "purchases debt," and her job was to "maintain records as they're generated throughout the course of business" and "travel with the attorneys to represent [plaintiff] as a witness."
Sharpe identified "an affidavit claim," "the assignments," and "the bill of sale" used "whenever we purchase a . . . portfolio debt." These documents were kept in the ordinary course of plaintiff's business. The judge then inquired whether Sharpe "ha[d] . . . personal knowledge of whether [defendant] ever signed a credit card or ever took out a credit card . . . from [WaMu]." Sharpe acknowledged plaintiff "d[id] not have the signature on an application." The judge continued by asking if the documents Sharpe identified were "document[s] from [WaMu]." Sharpe acknowledge they were not.
When Sharpe was questioned regarding the monthly statements, the judge interjected:
Plaintiff's counsel claimed the "business exceptions rule" permitted admission of the monthly statements. The judge disagreed, noting, "if you don't have the custodian of records for the underlying creditor, . . . how can you prove your case?" After inquiring whether plaintiff intended to produce any other witnesses, the judge asked defendant if he "ha[d] an application for dismissal?" The judge granted defendant's motion, concluding that Sharpe "ha[d] no personal knowledge of any of the business records of [WaMu]," was "not in a position to testify as to the contents of those records," and "there [wa]s no evidence . . . to establish that . . . defendant owe[d] a debt to [WaMu]." He entered an order of judgment in defendant's favor because "plaintiff [was] unable to prove [the] underlying debt." This appeal followed.
Plaintiff's essential argument is that the trial judge erred in refusing to admit the monthly credit card statements as business records, excepted from the hearsay rule by
"In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion."
"The purpose of the business records exception is to `broaden the area of admissibility of relevant evidence where there is necessity and sufficient guarantee of trustworthiness.'"
However, the foundation witness need not "have personal knowledge of the facts contained in the record."
Based upon the above, it was error for the trial judge to conclude that because Sharpe "[wa]s not a business custodian of [WaMu]," she was not "properly qualified to authenticate the underlying business records," or that because "she ha[d] no personal knowledge of any of the business records of [WaMu], she [was] not in a position to testify as to the contents of those records." In short, the basis for the judge's decision to exclude the monthly statements was "inconsistent with applicable law." Pressler & Verniero,
We do not accept plaintiff's contention that because of the prevalence of bank mergers and dissolutions, "routine records" of monthly credit card statements are admissible unless some "evidence [is] proferred regarding the untrustworthiness and/or unreliability of the monthly statements." Plaintiff relies in part upon our holding in
However, we concluded that the computer loan printouts showing the history of payments was a business record admissible under
Plaintiff bears the burden of establishing the predicate requirements such that the computerized billing statements are admissible as a business record pursuant to
Reversed and remanded for a new trial. We do not retain jurisdiction.
Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.
- No Cases Found