Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

August 1, 2014 by admin

Trial Court Order — litigant may not overcome summary judgment by filing an affidavit which repudiates prior sworn testimony

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

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.

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:
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.
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.
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).
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).
6. The parties are in agreement that the business records exception to the
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.
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).
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.
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).
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.
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.
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.
Therefore, it is hereby ORDERED and ADJUDGED that:
1. Defendant/Counter-Plaintiff’s Motion to Strike Affidavit of Angelica
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.
4. Defendant Jason Raymond’s Counterclaim against Plaintiff CACH, LLC remains
pending for further adjudication.

* * *

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Winn-Dixie, website, customers, prescription, place of public accommodation, coupons, refills, privileges, disabled, advantages, accommodations, visually-impaired, auxiliary, public accommodation, inaccessible, barrier, offerings, sighted, majority opinion, intangible, enjoyment, locator, rewards, card, district court, facilities, shopping, software, communicate, in-store – The difficulties caused by the customer’s inability to access much of the store’s website constituted a concrete and particularized injury that was not conjectural or hypothetical, and would continue if the website remained inaccessible; [2]-The statutory language in Title III of the ADA defining “public accommodation” was unambiguous and clear, and public accommodations were limited to actual, physical places, and websites were not a place of public accommodation under the statute; [3]-The store’s website did not constitute an intangible barrier to the customer’s ability to access and enjoy fully the physical grocery store; [4]-Absent congressional action that broadened the definition of “places of public accommodation” to include websites, the appellate court could not extend ADA liability to the facts presented.
  • Civil rights — Employment discrimination — Pharmacist employed by Department of Veterans Affairs brought action against Secretary, alleging that her managers at VA medical center discriminated against her based on her gender and age, retaliated against her because she engaged in protected activity, and subjected her to hostile work environment in violation of Title VII and Age Discrimination in Employment Act — Retaliation — Title VII’s federal-sector retaliation provision requires personnel actions to be made free from any discrimination — Supreme Court’s decision in pharmacist’s case, which held that federal-sector provision of ADEA did not require plaintiff to prove that age was a but-for cause of a challenged personnel action, undermined to the point of abrogation Eleventh Circuit’s prior panel precedent holding that Title VII’s federal-sector retaliation provision requires but-for causation — Standard that Supreme Court articulated for claims under ADEA’s federal-sector provision controls cases arising under Title VII’s nearly identical federal-sector provision — Retaliatory hostile work environment — An actionable federal-sector Title VII retaliatory-hostile-work-environment claim must describe conduct that rises to the level of personnel actions and must be evaluated under “might have dissuaded a reasonable worker” standard rather than the more stringent “severe or pervasive” standard
  • Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Civil procedure — Summary judgment — Opposing affidavit — Trial court abused its discretion in granting motion to strike affidavit of independent medical examiner based on plaintiff’s claim that affidavit “baldly repudiated” affiant’s deposition testimony regarding relationship between injuries and accident and medical necessity of chiropractic treatment — Because affiant’s testimony raised genuine issue of material fact, as it clearly conflicted with testimony of treating chiropractor, order granting summary judgment in favor of assignee/medical provider reversed
  • Wrongful death — Automobile accident — Jurors — Peremptory challenge — Race neutral explanation — Genuineness — New trial — Evidence — Trial court did not abuse its discretion in granting a new trial based on its improper denial of plaintiff’s peremptory challenge of juror — Trial court failed to apply proper legal standard in denying plaintiff’s peremptory strike of juror where it failed to recognize the presumption that plaintiff was exercising her peremptory challenge in a nondiscriminatory manner and hold defendants to their burden of proving purposeful discrimination — Fact that juror was sole African American juror left on the panel is, standing alone, insufficient to override a genuine race-neutral challenge — Trial court erred in granting a new trial based on its determination that verdict finding one of the defendants 100% liable for the fatal accident was against the manifest weight of the evidence — Order shows that trial court improperly re-weighed the evidence and acted as a seventh juror in doing so — Trial court erred in permitting jury to hear evidence related to defendant’s driving history where not only was the evidence unduly prejudicial, but the citations bore no similarity to the circumstances at issue and had no relevance to defendant’s alleged negligence at the time of the accident — Trial court erred in granting defendant’s motion notwithstanding verdict which asserted that defendant should not be liable for the total amount of damages to co-defendant’s tractor-trailer — A new-trial order and order for judgment notwithstanding verdict are mutually inconsistent and may not be granted simultaneously unless granted on the express condition that the order granting the judgment notwithstanding verdict only becomes effective if the order granting new trial is reversed on appeal, which did not happen in this case
  • Workers’ compensation — Prosthetic devices — Limitation of actions — Claimant who had screws and rods inserted in her spine as a result of an injury occurring in 1990 — Judge of compensation claims erred in rejecting employer/carrier’s statute of limitations defense to claim for pain management and a replacement mechanical bed — While applicable 1989 version of workers’ compensation law contained an exemption from its statute of limitations to the right for remedial attention relating to the insertion or attachment of a prosthetic device, there is no evidence that either the prosthesis, or the surgery required to insert it, is causing the need for the requested benefits as opposed to the underlying condition that necessitated the prosthesis in the first place — Fact that claimant may have a prosthetic device is not, standing alone, sufficient to prevent statute of limitations from accruing

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982