Portfolio Recover Associates, LLC v. Richard Docamp

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 20Docket: Cum-20-157 & Cum-20-158
Argued: February 9, 2021
Decided: April 6, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
PORTFOLIO RECOVERY ASSOCIATES, LLC
v.
CASEY CLOUGHERTY
*****
PORTFOLIO RECOVERY ASSOCIATES, LLC
v.
RICHARD DOCAMPO
CONNORS, J.
[¶1] In this consolidated appeal, Casey Clougherty and Richard Docampo
challenge the District Court’s (Bridgton, Woodman, J.) admission of integrated
business records in the credit card debt collection matters against them.1 When
these matters were decided by the trial court, our jurisprudence contained two
1 Although these cases concern collection actions by a debt buyer, the recent amendments to the
Maine Fair Debt Collection Practices Act do not apply because the debts at issue were purchased
before January 1, 2018. See 32 M.R.S. §§ 11001-11054 (2020); P.L. 2017, ch. 216 (effective
Nov. 1, 2017) (enacting special requirements for collection actions brought by consumer debt buyers
for debts sold on or after January 1, 2018).
2
conflicting interpretations of Maine Rule of Evidence 803(6) with regard to
integrated business records. The trial court admitted the records in accordance
with the predominant evidentiary standard at the time. Because we conclude
that the trial court’s factual findings underlying the admission of the challenged
records were erroneous, and given that we recently clarified the proper
approach for evaluating the sufficiency of a foundation laid by a proponent of
integrated business records in Bank of New York Mellon v. Shone, 2020 ME 122,
¶¶ 1, 7-28, 239 A.3d 671, we vacate the judgments that the District Court
entered in favor of Portfolio Recovery Associates, LLC, and remand these
matters for further proceedings.
I. BACKGROUND
[¶2] The following brief procedural history is drawn from the trial
court’s records.
[¶3] On May 8, 2019, Portfolio filed a complaint in the District Court
against Clougherty, seeking a judgment in the amount of $9,309.01. The
complaint alleged that Clougherty had opened a Capital One credit card
account, that he had defaulted on that account, that Portfolio had purchased the
debt, and that the balance was due and owing. On August 30, 2019, Portfolio
filed a nearly identical complaint against Docampo, seeking a judgment in the
3
amount of $7,889.06 for an alleged debt owed on a defaulted Synchrony Bank
credit card account. Clougherty and Docampo denied the allegations.
[¶4] On March 11, 2020, the trial court held back-to-back bench trials.
Clougherty and Docampo did not offer any witnesses or exhibits at their
respective trials. Portfolio offered several documentary exhibits through the
testimony of one witness—a records custodian employed by Portfolio.
[¶5] At Clougherty’s trial, Portfolio sought the admission of documents
created by Capital One, including a Capital One customer agreement, monthly
credit card statements, a spreadsheet containing information about
Clougherty’s account, and an affidavit of Capital One’s vice president of loss
mitigation stating that these records were kept in the ordinary course of Capital
One’s business. To establish the foundation, Portfolio’s records custodian
testified that she had received training on Capital One’s business practices
during a sixty- to ninety-minute conference call in 2011. Although she testified
that the training covered Capital One’s business process “step by step,” the
witness could not recall all the steps and did not have any personal knowledge
of how Capital One created, maintained, or stored its credit card account
records.
4
[¶6] At Docampo’s trial, Portfolio offered similar documents generated
by Synchrony Bank. Portfolio’s records custodian testified that she attended a
one-hour in-person training session in 2015 on the business practices of
Synchrony Bank, but she admitted that the training did not cover Synchrony
Bank’s day-to-day record-keeping practices.
[¶7] Clougherty and Docampo objected to the admission of the
documents created by Capital One and Synchrony Bank, respectively, arguing
that Portfolio’s records custodian was not a qualified witness because she did
not have sufficient knowledge of the original creditors’ practices for the
creation and maintenance of their business records. The court admitted the
records over their objections and entered judgments in favor of Portfolio,
finding that Portfolio’s records custodian was “a qualified witness given her
experience and training.” Clougherty and Docampo timely appealed. See
14 M.R.S. § 1901(1) (2020); M.R. App. P. 2B(c). We consolidated the appeals for
purposes of supplemental briefing and oral argument.
II. DISCUSSION
[¶8] In Shone, 2020 ME 122, ¶¶ 1, 7-28, 239 A.3d 671, we resolved a
conflict between two interpretations of Maine Rule of Evidence 803(6), as that
5
rule applies to integrated business records, by reaffirming the approach first
set forth in Northeast Bank & Trust Co. v. Soley, 481 A.2d 1123, 1127 (Me. 1984).
[¶9] The approach to integrated business records used in the
proceedings at issue here, however, was the interpretation described in
Beneficial Maine Inc. v. Carter, 2011 ME 77, ¶¶ 12-14, 25 A.3d 96, and its
progeny. The Carter approach required that the presenting witness have
sufficient knowledge of the practices of both the business that created the
record and the business that received it. Id. Based on that standard, the trial
court erred in finding that Portfolio’s records custodian was a qualified witness
because she was unable to describe with any particularity the record-keeping
practices of the original creditors. See Am. Express Bank FSB v. Deering,
2016 ME 117, ¶ 12, 145 A.3d 551 (“[W]e review a trial court’s foundational
findings to support admissibility for clear error.” (quotation marks omitted)).
[¶10] In Shone, we articulated that the Soley approach to integrated
records “eliminates the need for testimony about the practices of the entity that
created the record and shifts the focus to the record’s status within the
receiving entity.” 2020 ME 122, ¶ 8, 239 A.3d 671. Thus, “a record that one
business has received from another is admissible under Rule 803(6) without
testimony about the practices of the business that created the record, provided,
6
first, that the proponent of the evidence establishes that the receiving business
has integrated the record into its own records, has verified or otherwise
established the accuracy of the contents of the record, and has relied on the
record in the conduct of its operations, and, second, that the opponent of
admission has not shown that the record is nonetheless not sufficiently
trustworthy to be admitted.” Id. ¶ 1.
[¶11] Because the parties developed their respective records with a
different evidentiary standard in mind, fairness requires that we remand these
matters for further proceedings, which may include reopening the record to
allow further argument or to take new evidence. See id. ¶ 30 n.9; Ne. Harbor
Golf Club, Inc. v. Harris, 661 A.2d 1146, 1152 (Me. 1995) (allowing the trial court
to further develop the record on remand after announcing the adoption of a
different legal standard than the one applied at trial). The foundational
requirements for the admission of business records contain a factual
component, and that component is entirely within the province of the
fact-finder. See id. Nothing in this opinion should be construed as intimating
whether the business records at issue should be admitted as integrated records.
The entry is:
Judgments vacated. Remanded for further
proceedings consistent with this opinion.
7
Jonathan E. Selkowitz, Esq. (orally), Pine Tree Legal Assistance, Inc., Portland,
for appellants Casey Clougherty and Richard Docampo
Kathrine Audet, Esq., and Edward L. Zelmanow, Esq. (orally), Law Offices
Howard Lee Schiff, P.C., Portland, for appellee Portfolio Recovery Associates,
LLC
Bridgton District Court docket numbers CV-2019-67 and CV-2019-121
FOR CLERK REFERENCE ONLY