CACH, LLC v. deNourie
A-15-1034
| Neb. Ct. App. | Jan 17, 2017Background
- CACH, LLC sued Jon deNourie in county court (April 2012), alleging he borrowed from Beneficial Nebraska/HSBC and the account was assigned to CACH for collection.
- County court issued two orders to show cause for lack of prosecution (Oct 2012 and July 2013) but did not dismiss the action; the case remained active.
- CACH moved for summary judgment (May 2014). At the hearing it offered exhibits (10–12) including account documents showing deNourie’s signature and an assignment from HSBC to CACH; deNourie filed an affidavit denying the debt and submitted an unsigned response to requests for admission.
- County court admitted the exhibits as business records, found CACH made a prima facie case, and granted summary judgment.
- District court affirmed; deNourie appealed to the Nebraska Court of Appeals, raising jurisdiction, pleadings/scope, genuine fact issue, evidence admissibility, and alleged improper factfinding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction (orders to show cause) | Show-cause orders required dismissal after 30 days; CACH failed to respond timely, so case was automatically dismissed | Trial court had discretion and did not enter dismissal; retaining case was proper | No automatic dismissal; county court acted within discretion; assignment is without merit |
| Pleadings scope (cause of action mismatch) | Complaint named HSBC as assignor; summary judgment relied on Beneficial Nebraska documents — different causes | CACH was assignee of the claim and may sue in its own name under §25-302; Beneficial/HSBC relationship supports pleadings | Court correctly treated CACH as assignee; summary judgment was within pleaded issues |
| Genuine issue of material fact (existence of debt/assignment) | DeNourie’s affidavit denied the debt and submitted unsigned discovery responses to create factual dispute | CACH produced signed account/loan documents and assignment showing Beneficial/HSBC loan and assignment to CACH | No genuine dispute; record supports that Beneficial loaned money, HSBC managed Beneficial and assigned claim to CACH; summary judgment proper |
| Admissibility of evidence & district court findings | Exhibits 10–12 (affidavits/documents) were inadmissible hearsay; district court improperly made factual findings about unanswered requests for admission | Exhibits 10 and 12 qualified as business records via custodial affidavits; any error admitting exhibit 11 was harmless; unsigned responses are not competent to defeat summary judgment | Exhibits 10 and 12 properly admitted under business-records exception; exhibit 11 admission harmless (transcript contained the request); district court did not err in affirming summary judgment |
Key Cases Cited
- Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015) (standard for reviewing county court record on appeal)
- Edwards v. Hy‑Vee, 294 Neb. 237, 883 N.W.2d 40 (2016) (summary judgment standard)
- Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015) (dismissal for lack of prosecution rests in court’s discretion)
- Roemer v. Maly, 248 Neb. 741, 539 N.W.2d 40 (1995) (trial court’s inherent power to dismiss for failure to prosecute)
- Hoelck v. ICI Americas, Inc., 7 Neb. App. 622, 584 N.W.2d 52 (1998) (three-part test for business-records hearsay exception)
- Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999) (affidavit conclusory denials insufficient to defeat summary judgment)
- Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016) (burden-shifting framework on summary judgment)