Midland v. Van Slyke

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MIDLAND FUNDING, LLC, Plaintiff/Appellant,
v.
LISSETTE VAN SLYKE, Defendant/Appellee.
No. 1 CA-CV 14-0851
FILED 2-25-2016
Appeal from the Superior Court in Maricopa County
No. CV 2013-004551
The Honorable Randall H. Warner, Judge
AFFIRMED
COUNSEL
Johnson Mark, LLC, Phoenix
By Rhett Flaming-Buschman
Counsel for Plaintiff/Appellant
Skiba Law Group, PLC, Mesa
By John N. Skiba
Counsel for Defendant/Appellee
MIDLAND v. VAN SLYKE
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.
D O W N I E, Judge:
¶1 Midland Funding, LLC (“Midland”) appeals from a
judgment entered against it after a bench trial. For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Midland sued Lissette Van Slyke for $14,590.54 — the
balance reportedly due on a Chase Bank credit card account that Midland
acquired from Chase. The matter proceeded to a bench trial at which a
single witness testified: Anya Johnson — a “legal outsourcing specialist
and custodian of record” for Midland’s debt servicer.1 Through Johnson,
Midland sought to introduce copies of Chase’s credit card statements.
Van Slyke objected, and the superior court ultimately ruled the statements
inadmissible due to inadequate foundation. Without the statements,
Midland could not carry its burden of proving the underlying debt, and
the court found in favor of Van Slyke.
¶3 Midland filed a motion for reconsideration that was denied.
The court thereafter entered judgment for Van Slyke, awarding her
attorneys’ fees and costs. Midland timely appealed. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).
DISCUSSION
¶4 Midland’s only contention on appeal is that the superior
court erred by refusing to admit the Chase credit card statements into
evidence. According to Midland, the statements qualified as business
records under Arizona Rule of Evidence (“Rule”) 803(6).
1 The transcript reflects that the witness’s first name is “Anya,”
though the superior court’s ruling refers to her as “Tanya.”
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MIDLAND v. VAN SLYKE
Decision of the Court
¶5 We review a trial court’s ruling on the admissibility of
evidence pursuant to a hearsay exception for an abuse of discretion. State
v. Parks, 211 Ariz. 19, 24, ¶ 23 (App. 2005). Under Rule 803(6), a record is
admissible under the business records exception to the hearsay rule if:
(A) the record was made at or near the time by -- or from
information transmitted by -- someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation,
or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of
information or the method or circumstances of preparation
indicate a lack of trustworthiness.
¶6 “Whether business records are sufficiently reliable to satisfy
the hearsay exception in Rule 803(6) . . . is for the trial court to determine
in the exercise of its sound discretion.” State v. McCurdy, 216 Ariz. 567,
571, ¶ 7 (App. 2007). Portions of a purported business record that
“indicate a lack of trustworthiness or lack an appropriate foundation shall
not be admitted.” Id. at 572, ¶ 9. In ruling that Midland failed to supply
sufficient foundation for the Chase statements, the superior court stated:
The sole witness in this case was Tanya Johnson, a “Legal
Outsourcing Specialist and Custodian of Records” for
Midland. Ms. Johnson is trained regarding Midland’s
record-keeping, and so is qualified to provide foundation for
the admission of Midland’s business records. Exhibit 3,
however, consists of Chase account statements that were
transmitted to Midland at the time it purchased the account.
Ms. Johnson has no personal knowledge regarding those
account statements. All she could say was that Midland
received them from Chase and she believes they are reliable
because Chase is a reputable, federally-regulated institution.
This is insufficient foundation.
We discern no abuse of discretion.
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MIDLAND v. VAN SLYKE
Decision of the Court
¶7 Midland relies heavily on State v. Parker, 231 Ariz. 391 (2013)
— a criminal case in which the defendant challenged the admission of
evidence about transactions occurring on the murder victim’s Capital One
account. Parker argued the evidence did not fall within the business
records exception because the trial witness — Capital One employee Keri
Ward — could not state who transmitted the information that Capital One
included in its records. Id. at 401, ¶ 33. The Arizona Supreme Court
upheld the admission of the records, stating:
Ward testified that Capital One regularly makes and keeps
records of all credit card transactions. She described how
merchants and other third parties transmit the information
used to create the records. Although the records aid in fraud
and police investigations, Ward indicated that the records
serve several other business purposes, including billing,
tracking spending habits, and resolving customer disputes.
These facts qualify the entries in Ward’s report as business
records.
Id. at ¶ 31. Based on the record before it — particularly the testimony by
Ward — the court in Parker found no abuse of discretion in admitting the
Capital One records.
¶8 Parker does not stand for the proposition that anything a
party includes in its own business records and relies on qualifies as a
business record. On the contrary, Parker held that the requisite
trustworthiness and reliability in that case “stem[med] from the fact that
Capital One regularly relies on the information that third parties submit as
part of their ordinary course of business.” Id. at 402, ¶ 33 (emphasis added).
Unlike Parker, where the witness provided foundation for records her own
employer created and specifically testified about “how merchants and
other parties transmit the information used to create the records,” Johnson
could say little more than that Midland’s files included the Chase credit
card statements, which she assumed were accurate because “we buy
[accounts] from reputable sellers who, in return, are also required to keep
their records in ordinary course of business.” When Johnson was asked
whether Midland received the Chase statements at the time of the
account’s purchase, she responded that she did not know nor could she
state how the account statements were generated — either specifically or
based on industry practices.
¶9 Even if we applied the so-called “adoptive business records
doctrine,” the superior court could reasonably conclude that Johnson
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MIDLAND v. VAN SLYKE
Decision of the Court
supplied inadequate foundation for the Chase statements. See, e.g., Air
Land Forwarders, Inc. v. U.S., 172 F.3d 1338, 1344 (Fed. Cir. 1999) (adoptive
business record doctrine provides that documents may be admitted as
business records “where an organization incorporated the records of
another entity into its own, relied upon those records in its day-to-day
operations, and where there are other strong indicia of reliability”) (emphasis
added). Contrary to Midland’s suggestion, the mere fact that credit card
companies are subject to governmental regulation does not mean that
their account statements are automatically admissible without further
foundation when incorporated into a third-party litigant’s own records.
See Rule 803(6)(D) (requisite circumstances must be shown by witness
testimony or certification).
¶10 Finally, we reject Midland’s assertion that the court
improperly required personal knowledge about the creation of these
specific statements or testimony from Chase personnel. On the contrary,
the court stated it was “not ruling that testimony at trial by a Chase
representative would be necessary to admit the account statements,”
concluding only that the foundation Johnson had offered “was
insufficient.” The court reiterated the foundational deficit when it denied
Midland’s motion for reconsideration — distinguishing this case from a
nearly identical case it had previously adjudicated involving Midland.
The court noted that in the other case, “the business records of the
assignor creditor were accompanied by an affidavit. Here, no affidavit
was admitted, so the only foundational evidence for the [Chase] credit
card statements came from a witness whose only knowledge about them
is that they are in Midland’s files and Midland relies on them.”2 Cf. Ariz.
R. Evid. 902(11)–(12) (affidavits certifying business records must meet the
requirements of Rule 803(6)(A)–(C)).
2 The superior court admitted a different exhibit — a “field data
sheet” — notwithstanding the fact Johnson neither generated the
document nor had personal knowledge about the origins of the
information contained therein. Johnson, however, was able to describe
when and how that particular document was created and used. See Ariz.
R. Evid. 803(6)(A) (record must be made “at or near the time by -- or from
information transmitted by -- someone with knowledge”).
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MIDLAND v. VAN SLYKE
Decision of the Court
CONCLUSION
¶11 We affirm the judgment of the superior court. We deny
Midland’s request for an award of attorneys’ fees incurred on appeal
because it has not prevailed. Van Slyke is entitled to recover her taxable
costs on appeal upon compliance with Arizona Rule of Civil Appellate
Procedure 21.
:ama
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