21 Fla. L. Weekly Supp. 841a
Online Reference: FLWSUPP 2108RAYM
Debt collection — Summary judgment — Affidavit in
opposition to defendant’s motion for summary judgment is stricken, as affidavit
directly contradicts deposition testimony of plaintiff’s corporate
representative — Evidence — Hearsay — Exceptions — Business records —
Plaintiff has failed to demonstrate strict compliance with requirements of
business records exception to hearsay rule, and its proffered records are
stricken — Where defendant submitted significant admissible evidence that
plaintiff cannot meet its burden of proof on any of its claims, and plaintiff
has not submitted any admissible evidence to contradict defendant’s evidence or
demonstrate existence of genuine issue of material fact, summary judgment is
entered for defendant
opposition to defendant’s motion for summary judgment is stricken, as affidavit
directly contradicts deposition testimony of plaintiff’s corporate
representative — Evidence — Hearsay — Exceptions — Business records —
Plaintiff has failed to demonstrate strict compliance with requirements of
business records exception to hearsay rule, and its proffered records are
stricken — Where defendant submitted significant admissible evidence that
plaintiff cannot meet its burden of proof on any of its claims, and plaintiff
has not submitted any admissible evidence to contradict defendant’s evidence or
demonstrate existence of genuine issue of material fact, summary judgment is
entered for defendant
CACH, LLC, Plaintiff/Counter-Defendant, v. JASON RAYMOND,
Defendant/Counter-Plaintiff. County Court, 18th Judicial Circuit in and for
Seminole County. Case No. 2013-CC-001723. February 11, 2014. Carmine M. Bravo,
Judge. Counsel: Bryan Manno and Tina Gayle, Federated Law Group, Juno Beach, for
Plaintiff. Taras S. Rudnitsky, Rudnitsky Law Firm, Lake Mary, for Defendant.
Defendant/Counter-Plaintiff. County Court, 18th Judicial Circuit in and for
Seminole County. Case No. 2013-CC-001723. February 11, 2014. Carmine M. Bravo,
Judge. Counsel: Bryan Manno and Tina Gayle, Federated Law Group, Juno Beach, for
Plaintiff. Taras S. Rudnitsky, Rudnitsky Law Firm, Lake Mary, for Defendant.
FINAL JUDGMENT FOR DEFENDANT
ON PLAINTIFF’S CLAIMS AND ORDER
STRIKING PLAINTIFF’S AFFIDAVIT
THIS CAUSE came before the Court on Defendant’s Motion for Summary
Judgment and Defendant/Counter-Plaintiff’s Motion to Strike Affidavit of
Angelica Martinez, and the Court having reviewed the record, having heard
arguments of counsel, and otherwise being fully advised of the premises:
Judgment and Defendant/Counter-Plaintiff’s Motion to Strike Affidavit of
Angelica Martinez, and the Court having reviewed the record, having heard
arguments of counsel, and otherwise being fully advised of the premises:
The Court FINDS the following:
1. Plaintiff/Counter-Defendant CACH, LLC (“Plaintiff”) is a debt buyer and
debt collector who claims to have purchased Defendant/Counter-Plaintiff’s
(“Defendant’s”) credit card account from Household Bank, N.A.
debt collector who claims to have purchased Defendant/Counter-Plaintiff’s
(“Defendant’s”) credit card account from Household Bank, N.A.
2. Pursuant to proper notice, Plaintiff produced Christie Coston, an employee
of Square Two Financial, for deposition in this case. Ms. Coston provided sworn
testimony as Plaintiff’s corporate representative.
of Square Two Financial, for deposition in this case. Ms. Coston provided sworn
testimony as Plaintiff’s corporate representative.
3. Among other things, Ms. Coston testified to the following facts:
a. Plaintiff did not have any personal knowledge as to any of the
transactions relating to Defendant’s credit card account.
b. Plaintiff had no knowledge about any of the purchases on the
account.
c. Plaintiff’s knowledge was limited to a review of records that had
been generated and maintained by another entity, Household Bank, N.A., who was
the original creditor and a subsidiary of HSBC.
d. The records of HSBC relating to the subject account are
themselves based on the records of other entities, the various merchants
involved in the transactions.
e. Plaintiff had no knowledge as to the time when any of the entries
on any of the records had been made, and did not know whether they were timely
processed.
f. Plaintiff had no knowledge about the level of knowledge, or lack
of knowledge, possessed by any of the people who created or entered any of the
records.
g. Plaintiff had no knowledge of the business practices of the
merchants, merchant banks, Visa or Mastercard, or HSBC.
h. The records for the subject account are computer records from
HSBC.
i. Plaintiff did not know anything about HSBC
computers.
j. Plaintiff had no additional information about Defendant or the
subject account other than what had been revealed in the deposition
testimony.
4. In response to Defendant’s Motion for Summary Judgment, Plaintiff
filed an affidavit of Plaintiffs representative, with the name “Angelica
Martinez” rubber-stamped in 3 places. The content of that affidavit baldly
sought to directly contradict the prior sworn testimony of Plaintiff’s corporate
representative, Christie Coston. In fact, the affidavit even claimed that the
subject account was purchased from a different original creditor (HSBC Bank
Nevada, N.A.) than the one identified in sworn deposition testimony. Plaintiff
did not offer any explanation of the contradictions and discrepancies.
Furthermore, there were no documents attached to that affidavit or filed
therewith, in violation of Fla. R. Civ. P. 1.510(e).
filed an affidavit of Plaintiffs representative, with the name “Angelica
Martinez” rubber-stamped in 3 places. The content of that affidavit baldly
sought to directly contradict the prior sworn testimony of Plaintiff’s corporate
representative, Christie Coston. In fact, the affidavit even claimed that the
subject account was purchased from a different original creditor (HSBC Bank
Nevada, N.A.) than the one identified in sworn deposition testimony. Plaintiff
did not offer any explanation of the contradictions and discrepancies.
Furthermore, there were no documents attached to that affidavit or filed
therewith, in violation of Fla. R. Civ. P. 1.510(e).
5. The affidavit of Plaintiff’s representative, Angelica Martinez, directly
contradicts the sworn deposition testimony of Plaintiff’s corporate
representative and is stricken. “It is well established that a party to a
lawsuit will not be allowed to repudiate his or her prior deposition testimony
by an affidavit executed by that party or by another person, in order to
avoid a summary judgment.” E.g., Arnold v. Dollar General Corp.,
632 So. 2d 1144 (Fla. 5th DCA 1994) (emphasis in original).
contradicts the sworn deposition testimony of Plaintiff’s corporate
representative and is stricken. “It is well established that a party to a
lawsuit will not be allowed to repudiate his or her prior deposition testimony
by an affidavit executed by that party or by another person, in order to
avoid a summary judgment.” E.g., Arnold v. Dollar General Corp.,
632 So. 2d 1144 (Fla. 5th DCA 1994) (emphasis in original).
6. The parties are in agreement that the business records exception to the
hearsay rule requires the party to strictly meet the following requirements:
hearsay rule requires the party to strictly meet the following requirements:
(1) The record was made or near the time of the event;
(2) Was made by or from information transmitted by a person with
knowledge;
(3) Was kept in the ordinary course of a regularly conducted
business activity; and
(4) That it was the regular practice of that business to make such a
record.
Yisrael v. State, 993 So. 2d 952 (Fla. 2008) [33 Fla. L. Weekly
S577a]. This applies to each level of hearsay. Fla. Stat. §90.805.
S577a]. This applies to each level of hearsay. Fla. Stat. §90.805.
7. Plaintiff has failed to demonstrate strict compliance with the
requirements of the business records exception to the hearsay rule, and its
proffered records are excluded as inadmissible hearsay. Fla. Stat. §90.802;
Yisrael; Pickrell v. State, 301 So. 2d 473, 474 (Fla. 2d DCA
1974).
requirements of the business records exception to the hearsay rule, and its
proffered records are excluded as inadmissible hearsay. Fla. Stat. §90.802;
Yisrael; Pickrell v. State, 301 So. 2d 473, 474 (Fla. 2d DCA
1974).
8. Plaintiff’s reliance on WAMCO XXVIII, Ltd. v. Integrated Elec. Env’ts,
Inc., 903 So. 2d 230 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D957a] is
misplaced. WAMCO is factually distinguishable, in that the assignee in
that case had sent out its own billing statements showing payments and
adjustments after it was assigned the debt. WAMCO at 233. Also, in
WAMCO, the proponent of the records did have personal knowledge, as he
was “personally involved in servicing the [ ] loans”, and also had personal
knowledge about the business practices at issue. WAMCO at 232-233. There,
the proponent also presented detailed evidence about its process of verifying
the accuracy of the information received from others. WAMCO at 233. No
such evidence was presented in this case, distinguishing it factually.
Inc., 903 So. 2d 230 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D957a] is
misplaced. WAMCO is factually distinguishable, in that the assignee in
that case had sent out its own billing statements showing payments and
adjustments after it was assigned the debt. WAMCO at 233. Also, in
WAMCO, the proponent of the records did have personal knowledge, as he
was “personally involved in servicing the [ ] loans”, and also had personal
knowledge about the business practices at issue. WAMCO at 232-233. There,
the proponent also presented detailed evidence about its process of verifying
the accuracy of the information received from others. WAMCO at 233. No
such evidence was presented in this case, distinguishing it factually.
9. From a fair reading of the case, it is clear that the WAMCO witness was
testifying as to WAMCO’s own records, and not the records of another entity.
WAMCO at 233 (“admitted . . . into evidence as WAMCO’s business
records”). Other courts have agreed with this analysis, specifically in the
credit card context, finding that “the employee of Wamco testified about
Wamco records, not the records of another entity”. Atlantic Credit
& Finance, Inc. v. Anderson, 14 Fla. L. Weekly Supp. 1149c (Fla. Bay
Cty. Ct. 2007). Accord, Cavalry Portfolio Services v. Lopez, 15 Fla. L.
Weekly Supp. 933b (Fla. Palm Beach Cty. Ct. 2008); Unifund CCR Partners v.
Cosola, 16 Fla. L. Weekly Supp. 104a (Fla. Palm Beach Cty. Ct. 2008);
Cavalry Portfolio Service, LLC v. Machado, 16 Fla. L. Weekly Supp. 777c
(Broward Cty. Ct. 2009).
testifying as to WAMCO’s own records, and not the records of another entity.
WAMCO at 233 (“admitted . . . into evidence as WAMCO’s business
records”). Other courts have agreed with this analysis, specifically in the
credit card context, finding that “the employee of Wamco testified about
Wamco records, not the records of another entity”. Atlantic Credit
& Finance, Inc. v. Anderson, 14 Fla. L. Weekly Supp. 1149c (Fla. Bay
Cty. Ct. 2007). Accord, Cavalry Portfolio Services v. Lopez, 15 Fla. L.
Weekly Supp. 933b (Fla. Palm Beach Cty. Ct. 2008); Unifund CCR Partners v.
Cosola, 16 Fla. L. Weekly Supp. 104a (Fla. Palm Beach Cty. Ct. 2008);
Cavalry Portfolio Service, LLC v. Machado, 16 Fla. L. Weekly Supp. 777c
(Broward Cty. Ct. 2009).
10. Moreover, WAMCO has been abrogated by the subsequent holding of
the Florida Supreme Court in Yisrael v. State, 993 So. 2d 952 (Fla. 2008)
[33 Fla. L. Weekly S577a], which requires strict compliance with each of the
requirements of the business records exception to the hearsay rule. In fact, the
Yisrael Court cited with approval to the case of Johnson v. Dep’t of
Health & Rehab. Servs., 546 So. 2d 741, 743-744 (Fla. 1st DCA 1989).
Johnson expressly held that to qualify for the business records exception
to the hearsay rule, the custodian of the business creating those records must
testify and provide the necessary foundation. Johnson at 743-744.
the Florida Supreme Court in Yisrael v. State, 993 So. 2d 952 (Fla. 2008)
[33 Fla. L. Weekly S577a], which requires strict compliance with each of the
requirements of the business records exception to the hearsay rule. In fact, the
Yisrael Court cited with approval to the case of Johnson v. Dep’t of
Health & Rehab. Servs., 546 So. 2d 741, 743-744 (Fla. 1st DCA 1989).
Johnson expressly held that to qualify for the business records exception
to the hearsay rule, the custodian of the business creating those records must
testify and provide the necessary foundation. Johnson at 743-744.
11. Motions for summary judgment must be decided on the basis of admissible
evidence. Fla. R. Civ. P. 1.510(c); Harvey Bldg., Inc. v. Haley, 175 So.
2d 780, 782-783 (Fla. 1965). Defendant submitted significant admissible evidence
that Plaintiff cannot meet its burden of proof on any of its claims. Plaintiff
did not submit any admissible evidence to contradict Defendant’s evidence or to
even demonstrate a genuine issue of material fact. Therefore, Defendant is
entitled to judgment as a matter of law on Plaintiff’s claims.
evidence. Fla. R. Civ. P. 1.510(c); Harvey Bldg., Inc. v. Haley, 175 So.
2d 780, 782-783 (Fla. 1965). Defendant submitted significant admissible evidence
that Plaintiff cannot meet its burden of proof on any of its claims. Plaintiff
did not submit any admissible evidence to contradict Defendant’s evidence or to
even demonstrate a genuine issue of material fact. Therefore, Defendant is
entitled to judgment as a matter of law on Plaintiff’s claims.
12. The Court further giving consideration to the Plaintiff’s Objection to
Proposed Final Judgment for Defendant on Plaintiff’s Claims and Plaintiff’s
Request for Hearing.
Proposed Final Judgment for Defendant on Plaintiff’s Claims and Plaintiff’s
Request for Hearing.
Therefore, it is hereby ORDERED and ADJUDGED that:
1. Defendant/Counter-Plaintiff’s Motion to Strike Affidavit of Angelica
Martinez is GRANTED.
Martinez is GRANTED.
2. Defendant’s Motion for Summary Judgment is GRANTED.
3. Plaintiff CACH, LLC (4340 S. Monaco St., Denver, CO 80237) shall take
nothing by this action, and Defendant Jason Raymond ([Editor’s Note: Address
Omitted], Oviedo FL 32765) shall go hence without day.
nothing by this action, and Defendant Jason Raymond ([Editor’s Note: Address
Omitted], Oviedo FL 32765) shall go hence without day.
4. Defendant Jason Raymond’s Counterclaim against Plaintiff CACH, LLC remains
pending for further adjudication.
pending for further adjudication.
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