Phoenix Credit v. Deborah L. Akers

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 16, 2011 Session
PHOENIX CREDIT v. DEBORAH L. AKERS
Direct Appeal from the Circuit Court for Williamson County
No. 09423 James G. Martin, Judge,
No. M2010-01297-COA-R3-CV - Filed March 10, 2011
This is an appeal from the grant of summary judgment in favor of Appellee. Appellant
obtained a credit card from Appellee’s predecessor in interest, and defaulted on payment of
the debt. Appellee brought suit to recover the debt, and the trial court granted summary
judgment to Appellee. Appellant appeals, arguing that there is a dispute of fact as to whether
Appellee is a lawful successor in interest, and also asserting that the trial court erred in
denying Appellant’s request to have certain documents included in the record. Affirmed.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER. J., joined.
Deborah L. Akers, Nashville, Tennessee, Pro Se.
R.W. Shick, Jr., Nashville, Tennessee, for the appellee, Phoenix Credit.
MEMORANDUM OPINION 1
On January 4, 2008, Appellee Phoenix Credit filed suit in the General Sessions Court
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
of Williamson County against the Appellant Deborah L. Akers. By its complaint, Phoenix
Credit, L.L.C. sought to collect $7,800.55 plus court costs from Ms. Akers based upon her
alleged default on a credit card.2 It appears that Phoenix Credit experienced some difficulty
2
Phoenix Credit’s complaint was accompanied by the affidavit of Kayci Costa, a Phoenix Credit
employee responsible for the company’s books and records. Ms. Costa states that Deborah Akers is in
default in the amount of $7,800.55. This type of affidavit is called an affidavit of sworn account. Sworn
accounts are governed by Tennessee Code Annotated § 24-5-107(a), which provides, in pertinent part, as
follows:
(a) An account on which action is brought, coming from another state or
another county of this state, or from the county where suit is brought, with
the affidavit of the plaintiff or its agent to its correctness, and the certificate
of a state commissioner annexed thereto, or the certificate of a notary
public with such notary public's official seal annexed thereto, or the
certificate of a judge of the court of general sessions, with the certificate of
the county clerk that such judge is an acting judge within the county, is
conclusive against the party sought to be charged, unless that party on oath
denies the account or except as allowed under subsection (b).
(b) The court shall allow the defendant orally to deny the account under
oath and assert any defense or objection the defendant may have. Upon
such denial, on the plaintiff's motion, or in the interest of justice, the judge
shall continue the action to a date certain for trial.
According to the 13 Nancy F. McLean, Tennessee Practice: Civil Procedure Forms §8.1 (2011-
2012):
A licensed collection service is authorized by T.C.A. § 62-20-127
to take an assignment of accounts, bills, notes, or other indebtedness held
by another person or entity, for the purpose of billing, collecting, or filing
suit in the collection service licensee's own name, as the real party in
interest. The following requirements must be met:
(1) The assignor must make a voluntary, properly executed, and
acknowledged assignment to the collection service licensee;
(2) The original agreement between the creditor and the debtor must not
prohibit assignments;
(3) The assignment must contain a written agreement stating the effective
date of the assignment and the consideration paid or given, if any, for the
assignment. The written agreement must disclose that the collection service
licensee may, for purposes of litigation, consolidate the assigned account,
bill, note, or other indebtedness with those of other creditors against the
(continued...)
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in serving Ms. Akers with the complaint; nonetheless, Ms. Akers was ultimately served and,
on July 2, 2009, filed a motion to dismiss. As grounds for her motion, Ms. Akers asserts, in
relevant part, that Phoenix Credit is “an entity entirely unknown to her.” Specifically, Ms.
Akers contends that she had no contractual relationship with Phoenix Credit; consequently,
Ms. Akers states that Phoenix Credit has no legitimate claim against her. In response to the
motion to dismiss, Phoenix Credit provided financial records revealing that Ms. Akers was
issued a line of credit and corresponding credit card from Chase Bank. Ms. Akers made
payments on the credit card debt, including a payment of $136.00 on February 17, 2005, and
a payment of $131.00 on March 18, 2005. These are the only payments indicated in the
record; however, we note that the payments were made by checks drawn on Ms. Akers’ bank
account, and both checks reference the last four digits of the disputed credit card. No further
payments were received, although the record reveals that monthly statements were sent to the
last known address for Ms. Akers (i.e., the address on her checks). With penalties and
interest accrued due to her default, Ms. Akers’ principal balance, as of her January 2006
statement, was $7,800.55. Ms. Akers’ account with Chase Bank was subsequently assigned
to Phoenix Credit through a series of successors in interest, see infra.
Based upon the proof, the General Sessions court entered judgment in favor of
Phoenix Credit in the amount of $7,800.55 plus court costs. Ms. Akers timely appealed this
judgment to the Circuit Court at Williamson County, where the matter was set for hearing.
On November 6, 2009, Phoenix Credit moved the court for summary judgment asserting that
there was no dispute of material fact: (1) that Ms. Akers had obtained the subject credit card,
(2) that she had stopped making payments on the credit card, and (3) that the debit balance
was subsequently charged off by Chase Bank and ultimately sold to Phoenix Credit. Ms.
Akers opposed the motion for summary judgment, reiterating her position that she did not
have a contract with Phoenix Credit. In response, Phoenix Credit filed the affidavit of its
Collection Manager, Kevin Norman. Mr. Norman testified that Ms. Akers’ debt account,
which is held by Phoenix Credit, had originated as Ms. Akers’ Chase Bank Master Card.
Upon default of the terms of the Cardmember Agreement by Ms. Akers for failure to pay on
the account, and pursuant to the assignment provision of the Cardmember Agreement, the
charge off balance of $7,800.55 was assigned to CreditMax, L.L.C. on April 5, 2006.
2
(...continued)
individual debtor or co-debtors; and
(4) A collection service licensee bringing suit in its own name as an
assignee may submit an affidavit of sworn account that has been executed
under oath by the assigning party or by a person qualified to execute a
sworn account pursuant to T.C.A. § 24-5-107(a).
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CreditMax subsequently assigned the charge off balance to Phoenix Asset Holdings, L.L.C.
on December 14, 2006. Phoenix Asset Holdings subsequently assigned the charge off
balance to Appellee Phoenix Credit, L.L.C. on March 27, 2007. Bills of sale for these
transfers were attached as exhibits to Mr. Norman’s affidavit. Ms. Akers’ Cardmember
Agreement was also an exhibit to Mr. Norman’s affidavit. It provides, in relevant part, as
follows:
ASSIGNMENT. We may assign your account, any amounts
you owe us, or any of our rights and obligations under this
agreement to a third party. The person to whom we make the
assignment will be entitled to any of our rights that we assign to
that person.
Following discovery, a hearing on Phoenix Credit’s motion for summary judgment
was held on March 29, 2010. By Order of March 30, 2010, the Circuit Court granted
Phoenix Credit’s motion for summary judgment, and entered judgment in favor of Phoenix
Credit against Ms. Akers in the principal amount of $7,800.55, plus post-judgment interest
at ten percent per annum pursuant to Tennessee Code Annotated § 47-14-121. Ms. Akers
appeals. She raises three issues for review; however, we perceive that there are actually two
issues, which we restate as follows:
1. Whether the trial court erred in denying Ms. Akers’ request
for admission of certain documents into the appellate record.
2. Whether the trial court erred in granting summary judgment
in favor of Phoenix Credit.
Before reaching the substantive issue, we first note that Ms. Akers is proceeding pro
se. While a party who chooses to represent himself or herself is entitled to the fair and equal
treatment of the courts, Hodges v. Tenn. Att'y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App.
2000) (citing Paehler v. Union Planters Nat'l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct.
App. 1997)), “[p]ro se litigants are not ... entitled to shift the burden of litigating their case
to the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000)
(citing Dozier v. Ford Motor Co., 702 F.2d 1189, 1194-95 (D.C. Cir. 1983)). Pro se litigants
must comply with the same substantive and procedural law to which represented parties must
adhere. Hodges, 43 S.W.3d at 920-21.
Admission of Documents
Issues regarding admission of evidence in Tennessee are reviewed under an abuse of
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discretion standard. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001). “[T]rial
courts are accorded a wide degree of latitude in their determination of whether to admit or
exclude evidence, even if such evidence would be relevant.” Id. Our Supreme Court
discussed the abuse of discretion standard in Eldridge v. Eldridge, stating:
Under the abuse of discretion standard, a trial court's ruling
“will be upheld so long as reasonable minds can disagree as to
[the] propriety of the decision made.” A trial court abuses its
discretion only when it “applie[s] an incorrect legal standard, or
reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.” The abuse of
discretion standard does not permit the appellate court to
substitute its judgment for that of the trial court.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).
Appellate courts ordinarily permit discretionary decisions to stand when reasonable
judicial minds can differ concerning their soundness. Overstreet v. Shoney's, Inc., 4 S.W.3d
694, 709 (Tenn. Ct. App. 1999). A trial court's discretionary decision must take into account
applicable law and be consistent with the facts before the court. Id. When reviewing a
discretionary decision by the trial court, the “appellate courts should begin with the
presumption that the decision is correct and should review the evidence in the light most
favorable to the decision.” Id.
In the instant case, the appellate record contains no transcript of the evidence adduced
at the hearing on the motion for summary judgment. However, the record does contain a
filing by Ms. Akers made on July 6, 2010, which purports to be a Statement of the Evidence.
Tenn. R. App. P. 24(c).3 It does not appear that Phoenix Credit objected to this filing, nor
3
This Rule provides, in relevant part:
Statement of the Evidence When No Report, Recital, or Transcript Is
Available. —If no stenographic report, substantially verbatim recital or
transcript of the evidence or proceedings is available, the appellant shall
prepare a statement of the evidence or proceedings from the best available
means, including the appellant's recollection. The statement should convey
a fair, accurate and complete account of what transpired with respect to
those issues that are the bases of appeal. The statement, certified by the
appellant or the appellant's counsel as an accurate account of the
proceedings, shall be filed with the clerk of the trial court within 60 days
(continued...)
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does it appear that the trial court approved the purported statement of the evidence.
Nonetheless, this Court may consider this statement of the evidence under subsection (f) of
Rule 24.4 In relevant part, Ms. Akers’ statement of the evidence states that, while the trial
court allowed oral arguments by the parties at the hearing on the motion for summary
judgment, it specifically excluded “evidence presented by Akers with respect to Phoneix’s
[sic] standing to bring and sustain this civil action as a real party-in-interest.” However, the
statement of the evidence does not list the documents that were allegedly denied by the trial
court. In her appellate brief, Ms. Akers includes two exhibits, “001,” and “002.” Exhibit 001
is a facsimile transmission dated March 12, 2010, from Chase Card Services to Ms. Akers.
In relevant part, the transmission indicates that Chase has provided the credit-reporting
agencies with information indicating that Ms. Akers’ default account had been charged off
and sold to another agency. Exhibit 002 is also a facsimile transmission, dated March 31,
2010, from CreditMax, Chase’s immediate successor in interest, to Ms. Akers. This
transmission indicates that CreditMax sold Ms. Akers’ account to Phoenix Asset Holdings,
L.L.C. on June 20, 2006, with an outstanding balance of $7,800.55.
Because the record does not contain the trial court’s reasons for disallowing these two
facsimiles, it is difficult for us to conduct a meaningful review on appeal. We note, however,
that the first facsimile is dated March 12, 2010. The hearing on the motion for summary
judgment was held on March 29, 2010. It appears, therefore, that Ms. Akers had ample time
to file a supplement to her statement of undisputed facts and/or to ask the court for more time
to do so. Rather, from what we gather from the record, it appears that Ms. Akers’s first
3
(...continued)
after filing the notice of appeal. Upon filing the statement, the appellant
shall simultaneously serve notice of the filing on the appellee, accompanied
by a short and plain declaration of the issues the appellant intends to
present on appeal. Proof of service shall be filed with the clerk of the trial
court with the filing of the statement...
4
Tenn. R. App. P. 24(f) provides, in relevant part:
(f) Approval of the Record by the Trial Judge or Chancellor. —The
trial judge shall approve the transcript or statement of the evidence and
shall authenticate the exhibits as soon as practicable after the filing thereof
or after the expiration of the 15-day period for objections by appellee, as
the case may be, but in all events within 30 days after the expiration of said
period for filing objections. Otherwise the transcript or statement of the
evidence and the exhibits shall be deemed to have been approved and shall
be so considered by the appellate court, except in cases where such
approval did not occur by reason of the death or inability to act of the trial
judge....
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attempt to introduce this unauthenticated document was at the hearing itself, and that Phoenix
Credit lodged a hearsay objection, which was sustained by the court. From the record, we
cannot conclude that the trial court abused its discretion in sustaining the objection to
“Exhibit 001.”
Concerning “Exhibit 002,” on its face, the facsimile was transmitted on March 31,
2010, which was after the hearing on the motion for summary judgment. Because this
document did not exist at the time of the hearing, and was, obviously, not considered by the
trial court, the trial court correctly excluded it from the appellate record. Moreover, there is
no indication in the record that Ms. Akers ever moved the court to consider evidence
obtained after entry of the judgment.
However, even were we to assume that these documents were admissible and review
them as part of the appellate record, we nonetheless conclude that they do not support Ms.
Akers’ argument that Phoenix Credit was not the lawful successor in interest to her Chase
Bank account. Rather, the two subject facsimiles appear to support Phoenix Credit’s position
that it is the rightful successor in interest to the disputed account.
Summary Judgment
It is well settled that a trial court's decision to grant a motion for summary judgment
presents a question of law. Our review is therefore de novo with no presumption of
correctness afforded to the trial court's determination. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). “This Court must make a fresh determination that the requirements of Tenn.
R. Civ. P. 56 have been satisfied.” Mathews Partners, LLC v. Lemme, No.
M2008-01036-COA-R3-CV, 2009 WL 3172134, at *3 (Tenn. Ct. App. Oct. 2, 2009) (citing
Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1977)).
When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party's claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). However,
“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or
shutup’ or even to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the
moving party's motion is properly supported, “[t]he burden of production then shifts to the
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd
v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The non-moving party may accomplish this by:
“(1) pointing to evidence establishing material factual disputes that were overlooked or
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ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;
(3) producing additional evidence establishing the existence of a genuine issue for the trial;
or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.
R. Civ. P., Rule 56.06.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008)
(citations omitted).
When reviewing the evidence, we must determine whether a factual dispute exists.
“Summary judgment procedure is not a substitute for trial. It is only when there is no
disputed issue of material fact that a summary judgment should be granted. If such fact issue
is present, the matter must not be resolved by a battle of affidavits, but must be resolved by
a trial on the merits.” Stone v. Hinds, 541 S.W.2d 598, 599 (Tenn. Ct. App. 1976) (citations
omitted). In evaluating the trial court's decision, we review the evidence in the light most
favorable to the nonmoving party and draw all reasonable inferences in the nonmoving
party's favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed
fact, we must “determine whether the fact is material to the claim or defense upon which
summary judgment is predicated and whether the disputed fact creates a genuine issue for
trial.” Mathews Partners, LLC, 2009 WL 3172134, at *3 (citing Byrd, 847 S.W.2d at 214).
“A disputed fact is material if it must be decided in order to resolve the substantive claim or
defense at which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists
if “a reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id.
“Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion.” Landry v. S. Cumberland Amoco, et al,
No. E2009-01354-COA-R3-CV, 2010 WL 845390, at *3 (Tenn. Ct. App. March 10, 2010)
(citing Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995)).
In support of its motion for summary judgment, Phoenix Credit provided the affidavit
of its Collection Manager, Kevin Norman. In relevant part, Mr. Norman states that Phoenix
Credit purchased Ms. Akers’ account as a successor in interest to Chase Bank. Phoenix
Credit provided bills of sale, detailing the line of successors. Phoenix Credit also provided
all of the relevant statements on Ms. Akers’ account, which statements outlined her default
and accrual of interest and penalties. In addition, Phoenix Credit offered cancelled checks,
drawn on Ms. Akers’ personal account, for payments to the credit card while it was owned
by Chase Bank. There is no indication in the record that Ms. Akers’ credit card number
changed when it was sold, nor is there any indication that Ms. Akers did not receive the
statements and notices that are contained in the record. Mr. Norman also referenced the
Cardmember Agreement, which was admitted into the record. This agreement clearly states
that any contractual agreements by and between Ms. Akers and Chase Bank enure to Chase’s
successors in interest.
In her response to the motion for summary judgment, and in her statement of
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undisputed material facts filed in support thereof, Ms. Akers does not dispute the fact that
she established a credit account with Chase Bank and was issued a credit card having the last
four digits of 1205. Ms. Akers also does not dispute the fact that she made two payments on
this account, and admits that, other than those two payments, she “has not made any payment
to Chase Bank or to any successor in interest to Chase Bank....” In opposition to the motion
for summary judgment, Ms. Akers contends that there is a dispute of fact as to whether
Phoenix Credit is “a lawful successor-in-interest to any credit card account [maintained
by]...Deborah L. Akers.” Despite Ms. Akers’ argument, we find no evidence in the record
to support her allegation. Rather, the uncontroverted bills of sale offered by Phoenix Credit
clearly outline the successors in interest to Ms. Akers’ account, and specifically show that
Phoenix Credit is the lawful holder of the account. From the record, there is no dispute as
to the material facts upon which this case hinges.
Having determined that there are no disputed material facts, under the summary
judgment analysis, the court must then determine whether the moving party is entitled to
judgment on those facts as a matter of law. Tenn. R. Civ. P. 56.04. As discussed above, the
undisputed facts are as follows: (1) that Ms. Akers obtained a credit card from Chase Bank,
which card was governed by a Cardmember Agreement; (2) that she defaulted on that debt;
(3) that the Cardmember Agreement clearly and unambigously provides that the rights and
obligations under the agreement enured to Chase’s successors in interest; and (4) that
Phoenix Credit was a lawful successor in interest to Chase as evidenced by the bills of sale.
Based upon these facts, we conclude not only that Phoenix Credit had standing to bring suit
against Ms. Akers for the outstanding debt, but also that Phoenix Credit was entitled to
summary judgment as granted by the trial court.
For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are assessed against the Appellant, Deborah L. Akers.
_________________________________
J. STEVEN STAFFORD, JUDGE
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