Portfolio Recovery Associates, LLC v. Migliore, 314 P.3d 1069

Background

PRA sued Charles Migliore for breach of contract after acquiring a delinquent Wells Fargo credit account (the Account).
PRA moved for summary judgment supported by affidavits (David Sage for PRA; Miriam Olguin for Wells Fargo records) and account records; Migliore moved to strike the affidavits.
The district court denied Migliore’s motions to strike, struck Migliore’s exhibits as hearsay, and granted PRA summary judgment because Migliore submitted no admissible evidence creating a factual dispute.
Migliore filed a Rule 59 motion to amend the judgment and sought an extension to file reply memoranda; the district court denied relief and entered final judgment.
On appeal Migliore argued the affidavits and supporting records were inadmissible, summary judgment was improper, and the court abused its discretion in denying timing relief; PRA sought appellate fees.

Issues

Issue	Plaintiff's Argument (PRA)	Defendant's Argument (Migliore)	Held
Admissibility of Sage affidavit and exhibits	Sage is a PRA records custodian; his affidavit and attached bill of sale/business records are properly foundational	Affidavit lacks factual foundation; assignment documents not attached; exhibits are hearsay without proper business-records foundation	Court: No abuse of discretion — Sage’s personal knowledge and custodian status provided sufficient foundation; exhibits admissible as business records
Admissibility of Olguin (Wells Fargo) affidavit and records	Olguin is custodian and attests to authenticity; records admissible under business-records exception	Olguin’s affidavit insufficiently founded; reservation to designate another custodian makes affidavit unreliable and invades right to cross-examine	Court: No abuse of discretion — Olguin’s averments provided adequate foundation; defendant could have deposed a witness but did not
Sufficiency of PRA’s summary judgment evidence (breach of contract)	Account statements, merchant affidavits, and assignment establish account in Migliore’s name, balance due, default, and assignment to PRA — prima facie breach	Migliore contends he might be merely an authorized user; assignment evidence insufficient	Court: PRA proved each element on undisputed record; reasonable inference is that Migliore was the account holder; summary judgment proper
Denial of extension/time to file replies and Rule 59 motion	Court had discretion; Migliore’s belated replies were considered with Rule 59 filings; PRA entitled to appellate fees on prevailing	Migliore argued wrong standard under Rule 6(b) and that denial prejudiced his ability to challenge affidavits; sought reversal	Court: Any error in denying extension was harmless because replies were later considered; denial of Rule 59 not an abuse; PRA entitled to appellate fees but not sanction for frivolous appeal

Key Cases Cited

Murdock v. Springville Mun. Corp., 982 P.2d 65 (Utah 1999) (standard: abuse of discretion review for motions to strike affidavits)
Daniels v. Gamma West Brachytherapy, LLC, 221 P.3d 256 (Utah 2009) (abuse of discretion defined by legal error or lack of evidentiary basis)
Orvis v. Johnson, 177 P.3d 600 (Utah 2008) (summary judgment correctness standard; burden on movant to prove elements)
Bair v. Axiom Design, LLC, 20 P.3d 388 (Utah 2001) (elements of breach of contract claim)
Superior Receivable Servs. v. Pett, 191 P.3d 31 (Utah Ct. App. 2008) (custodian affidavit can supply foundation for business records)
Webster v. Sill, 675 P.2d 1170 (Utah 1983) (affiant need not be subject to cross-examination like a deponent)
Kilpatrick v. Wiley, Rein & Fielding, 37 P.3d 1130 (Utah 2001) (harmless error standard for discretionary rulings)
Dantine v. Shores, 266 P.3d 188 (Utah Ct. App. 2011) (prevailing party entitled to appellate fees if awarded below)
Cooke v. Cooke, 22 P.3d 1249 (Utah Ct. App. 2001) (standard for alleging frivolous appeal sanctions)
Johnson v. Montoya, 308 P.3d 566 (Utah Ct. App. 2013) (review of denial of Rule 59 motion for abuse of discretion)