New York City Debt Collection Defense Attorney

Asset Acceptance Case Reversed on Appeal; Admissible Evidence of Credit Card Debt Not Submitted with its Summary Judgment Motion

Debt-buyer, Asset Acceptance, LLC, failed to "carry its evidentiary burden" to win a summary judgment motion involving an alleged Citibank credit card debt.

A summary judgment motion is a written request for a judgment before trial based on pre-trial evidence (i.e. affidavits, depositions, admissions of fact, interrogatories) to hopefully show that the moving party can prove its case without the need for trial. The moving party first has the high burden of removing any "triable issues of fact." If this burden appears to have been met, the opposing party need only raise one triable issue of fact to defeat the motion.

In the case discussed here, Asset Acceptance, LLC v. Goraj,[1] Asset Acceptance submitted the following documents as evidence:

  • "Bill of Sale and Assignment" transferring "the Accounts described in Exhibit 1 and the final electronic file";
  • A list titled "Unknown Schedule A" and "Client – Citibank (South Dakota, NA)" that included a line showing an account number, Goraj's name, and principal amount sought; and
  • An affidavit by an Asset Acceptance employee alleging that the "Bill of Sale" and the "Unknown Schedule A" were reviewed and identified in the affidavit. But, the court found, "the list was never identified in the affidavit, attached to it, or otherwise authenticated or explained, and was therefore not admissible.

Neither the contract, nor account statements were submitted by Asset Acceptance, which was represented by Fulton, Friedman & Gullace, LLP.

Aside from denying the allegations in the complaint, the defendant, in an affidavit, averred that "she had previously been notified by her health-insurance provider that a computer disk drive containing her personal information had gone missing," and that "she believed she was entitled to be able to examine alleged charges and documents, signed by her, of the alleged account before any further proceedings."

At oral argument, the defendant reiterated her request for a copy of the contract and an opportunity to examine the charges. Asset Acceptance admitted that it had no other evidence besides what it had submitted as listed above.

The trial court actually granted Asset Acceptance summary judgment on that evidence. The defendant timely appealed. After examining the evidence, the appellate court made short work of the evidence and reversed the trial court's decision.

The appellate court found that "[t]he employee's conclusory affidavit, unaccompanied by the documents upon which she relied, could not support summary judgment." "Furthermore, her affidavit failed to establish her familiarity with the manner in which Citibank's records are kept, as required under state law."

Due to Asset Acceptance's deficient evidence, it never met its burden of proof, and as such, the burden never even shifted to the defendant to raise a genuine issue of fact.

[1] Asset Acceptance, LLC v. Goraj, Court of Appeals of Arizona, Division One, Department A, March 26, 2013, Filed, 2013 Ariz. App. Unpub. LEXIS 323, 7.