PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff-Respondent, v. Lloyd MACDONALD, Defendant-Appellant.
Docket No. 43346
Supreme Court of Idaho, Boise
June 1, 2017
393 P.3d 1261
In Martinez, the U.S. Supreme Court announced a “narrow exception” to Coleman. Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. 566 U.S. at 17, 132 S. Ct. at 1320, 182 L. Ed. 2d at 287-88. In Trevino v. Thaler, the Court extended its holding in Martinez to include states where the “procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.”13 569 U.S. 413, 416, 133 S. Ct. 1911, 1921, 185 L. Ed. 2d 1044, 1056-57 (2013). Thus, Martinez applies in Idaho. See Matthews v. State, 122 Idaho 801, 806, 839 P.2d 1215, 1220 (1992) (recognizing that the post-conviction setting is the “preferred forum for bringing claims of ineffective assistance of counsel,” though in limited instances such claims may be brought on direct appeal “on purported errors that arose during the trial, as shown on the record“); see also Nielson v. Yordy, No. 1:14-CV-00236-EJL, 2016 WL 427062, at *11-15 (D. Idaho Feb. 3, 2016) (ruling that Martinez, as defined in Trevino, applies in Idaho).
However, while Martinez made it obligatory for federal habeas courts to hear claims of ineffective assistance of trial counsel if initial post-conviction counsel was not provided or failed to properly raise those issues, Martinez is explicitly equitable in nature. Martinez, 566 U.S. at 14-15, 132 S. Ct. at 1319-20, 182 L. Ed. 2d at 285-87. Because the holding in Martinez is not a constitutional holding it is not binding on state courts. Id. at 16, 132 S. Ct. at 1320, 182 L. Ed. 2d at 287 (“In addition, state collateral cases on direct review from state courts are unaffected by the ruling in this case.“). Accordingly, we are not obligated to follow Martinez in our state courts. And we choose not to. The underlying policy in Murphy has not changed in the two years since it was decided, and we decline to apply Martinez in our state courts. Murphy remains good law. Martinez simply means such claims will not be procedurally defaulted in federal habeas proceedings and the federal court will have to address those claims on the merits.14 The district court‘s dismissal of counts 2-5 in Johnson‘s Amended Successive Petition is affirmed.
IV. CONCLUSION
We affirm the district court‘s rulings regarding DNA testing under
Justices EISMANN, JONES, HORTON and BRODY concur.
BRODY, Justice.
This is a debt collection matter. Plaintiff Portfolio Recovery Associates, LLC (“PRA“) sued Defendant Lloyd MacDonald for the amount owed on a Citibank credit card account. MacDonald filed a motion for summary judgment, arguing that PRA did not have standing to bring this action because it could not prove that the debt had been assigned by Citibank to PRA. PRA filed a cross-motion for summary judgment. MacDonald objected to the evidence PRA submitted to support its position, arguing that the evidence was inadmissible hearsay and lacked adequate foundation. The magistrate court overruled MacDonald‘s objections and granted summary judgment in favor of PRA. MacDonald appealed to the district court. The district court affirmed the magistrate court‘s decision. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
PRA purchases charged-off credit card accounts and then attempts to collect the debts. PRA claims to own a Citibank credit card account for Lloyd MacDonald. PRA sued MacDonald in magistrate court alleging he failed to pay $3,776.29 owed on the account. MacDonald filed a motion for summary judgment, arguing that PRA did not have standing to bring the suit because PRA could not prove that the account had been assigned to it. PRA filed an objection to MacDonald‘s motion and a cross-motion for summary judgment. PRA attached the following exhibits to its objection and cross-motion:
Exhibit 1 Affidavit of Chad Robertson, a Citibank Document Control Officer (“Robertson Affidavit“). No exhibits are attached to the affidavit itself.
Exhibit 2 Affidavit of Sale of Account by Original Creditor signed by Patricia Hall, a Citibank Financial Account Manager, dated July 16, 2013 (“Hall Affidavit“).
Exhibit 3 Bill of Sale and Assignment from Citibank to PRA Exhibit 4 Missing (it is not part of the Clerk‘s Record and is not part of the record below).
Exhibit 5 Sears credit card statements in MacDonald‘s name.
MacDonald objected to the consideration of those exhibits, arguing that they were inadmissible hearsay and that the statements contained in the Robertson Affidavit lack foundation. The magistrate court overruled MacDonald‘s evidentiary objections and granted summary judgment in favor of PRA. MacDonald appealed the magistrate court‘s decision to the district court. The district court, sitting as an intermediate appellate court, affirmed the magistrate court‘s decision. MacDonald appeals the district court‘s decision, arguing that the Robertson Affidavit and credit card statements are inadmissible and should not have been considered when deciding the parties’ cross-motions for summary judgment.
II. STANDARD OF REVIEW
When reviewing the decision of a district court sitting in its capacity as an appellate court
[t]he Supreme Court reviews the trial court (magistrate) record to determine whether there is substantial and competent evidence to support the magistrate‘s findings of fact and whether the magistrate‘s conclusions of law follow from those findings. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate‘s decision, we affirm the district court‘s decision as a matter of procedure.
Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012) (quoting Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008)). “Thus, this Court does not review the decision of the magistrate court.” Pelayo v. Pelayo, 154 Idaho 855, 858, 859, 303 P.3d 214, 218 (2013). “Rather, we are ‘procedurally bound to affirm or reverse the decisions of the district court.‘” Id. (quoting State v. Korn, 148 Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009)).
III. ANALYSIS
A. The Robertson Affidavit does not contain adequate foundation and is not admissible under the business records exception to the hearsay rule.
MacDonald challenged the admissibility of the Robertson Affidavit, arguing that the statements contained in the affidavit are hearsay and lack adequate foundation. He argued that the affidavit should not be considered when deciding the cross-motions for summary judgment based on the 2014 version of
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party‘s pleadings, but the party‘s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
We have held that these requirements “are not satisfied by an affidavit that is conclusory, based on hearsay, and not supported by personal knowledge.” State v. Shama Res. Ltd. P‘ship, 127 Idaho 267, 271, 899 P.2d 977, 981 (1995).
To determine the admissibility of the Robertson Affidavit it is necessary to look at the
AFFIDAVIT
STATE OF MISSOURI ) ss.
COUNTY OF PLATTE )Account Holder: LLOYD MACDONALD
SSN/EIN/TIN #: xxx-xx-xxxxAccount # ending in xxxx
The undersigned, Chad Robertson, being duly sworn, states and deposes as follows:
1. I am an employee of Citibank, N.A. (“Citibank“), a national bank located in Sioux Falls, South Dakota, and I am authorized to make this Affidavit. My job title is Document Control Officer. My job responsibilities include reviewing and obtaining account information in Citibank‘s records as it relates to credit card accounts owned or previously owned by Citibank. This includes accounts previously owned by Citibank (South Dakota), N.A., which merged into Citibank in or about July 2011. The statements set forth in this affidavit are true and correct to the best of my knowledge, information and belief based on either personal knowledge or review of the business records of Citibank.
2. My duties include having knowledge of, and access to, business records relating to the Citibank account referenced above. These records are kept by Citibank in the regular course of business and it was in the regular course of business of Citibank for an employee or representative with personal knowledge of the act, event, condition, or opinion recorded to make memorandum or records or to transmit information thereof to be included in such memorandum or records; and that the records were made at or near the time of the act and/or event recorded or reasonably soon thereafter.
3. Citibank‘s records reflect that a credit card account ending in account number 2766 (the “Account“) was sold to Portfolio Recovery Associates, LLC on or about 6/27/2013. At the time the Account was sold, Citibank prepared and forwarded to Portfolio Recovery Associates, LLC a spreadsheet reflecting Account information as of the sale date based on Citibank‘s records, including, among other things, the Account number, Account balance, the date of the last payment, the Account holder‘s name, and Social Security number (the “Account Information“). The Account Information reflects that the Account was opened on 10/4/2005. The Account Information reflects that the Account holder‘s name at time of the sale was LLOYD MACDONALD, with a Social Security number ending: xxx-xx-xxxx.
4. The Account Information indicates that, as of the date the Account was sold, there was due and payable on the Account $3,776.29.
5. The Account Information reflects that, as of the date the Account was sold, the last Account payment received by Citibank posted to the Account on 10/2/2012.
(emphasis added).
The district court examined MacDonald‘s objections to the Robertson Affidavit under
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that
complies with 902(11) , unless the opponent shows the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.
This Court has made it clear that
Because records of regularly conducted activity are not normally self proving, as public records may be under
Rule 803(8) , the testimony of the custodian or other person who can explain the record keeping of the organization is ordinarily essential. The custodian need not have personal knowledge of the actual creation of the document nor need [the custodian] have been an employee of the business when the record was made. The test is whether [the custodian] has knowledge of the system used to make the record and not whether [the custodian] has knowledge of the contents of the record.
Id. (quoting Report of the Idaho State Bar Evidence Committee, C 803, p. 10 (4th Supp. 1985) (emphasis added)).
MacDonald argued that the statements contained in the Robertson Affidavit are likely based on information contained on a computer screen. We agree. The fact that Robertson‘s statements are based on electronic information, however, still implicates
Robertson stated in his affidavit that Citibank records showed that the account linked to MacDonald was sold to PRA. He did not identify the records he examined and did not explain when or how the information was entered into the Citibank records. Robertson also stated that Citibank prepared and delivered a spreadsheet to PRA reflecting account information as of the sale date. Robertson does not explain, however, how that spreadsheet was made or the procedural safeguards that were used to make sure that the information taken from Citibank records and put on the spreadsheet was accurate. His affidavit also does not contain any statement verifying that the information on the spreadsheet was still accurate at the time of his affidavit. The reality is that consumers do not always know or understand when accounts are sold and may make payments to their credit card company that are not reflected on a spreadsheet created at the time of the sale of the debt. For these reasons we find that the foundation for the statements contained in the Robertson Affidavit was not adequate under
The magistrate court ruled on MacDonald‘s objection to the Robertson Affidavit from the bench. Unfortunately, the court did not go through a detailed analysis of the affidavit itself on the record. Instead, the court ruled that it was persuaded to admit the affidavit based on another trial court opinion that MacDonald submitted. We have reviewed that opinion and do not find that it addresses the issues raised in this case. The magistrate court also stated that it would more fully articulate the basis for its decision in two cases that were under advisement in another county. Those decisions are not part of this record, and we cannot use them to evaluate the magistrate court‘s reasoning. There is not an adequate record to support the magistrate court‘s decision to admit the Robertson Affidavit, and as such, we find that the magistrate court abused its discretion. The district court erred when it affirmed the magistrate court‘s decision.
MacDonald also challenged the admissibility of the Sears credit card statements that were submitted by PRA. He contends that the credit card statements are hearsay and do not fall under the business records exception in
C. The catch-all exception to the hearsay rule cannot be used to admit the Robertson Affidavit or Sears Credit Card Statements.
PRA contends that the “catch-all” exception to the hearsay rule can be used to admit the Robertson Affidavit and Sears credit card statements.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
D. Summary Judgment could not be properly granted in MacDonald‘s favor.
MacDonald argues that PRA lacks standing to bring suit because the company has not proven that it owns the Citibank account. The district court rejected this argument, finding that the Robertson Affidavit when accompanied by the Bill of Sale and credit card statements shows that an assignment took place. While we generally do not review denials of motions for summary judgment, we find that MacDonald did not adequately marshal PRA‘s evidence regarding the existence of an assignment, and therefore, summary judgment could not be granted in his favor on this issue.
Standing is not a mere pleading requirement, “but rather an indispensable part of the plaintiff‘s case.” Camp Easton Forever, Inc. v. Inland Nw. Council Boy Scouts of Am., 156 Idaho 893, 898, 332 P.3d 805, 810 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).
“[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. (quoting Lujan, 504 U.S. at 561, 112 S. Ct. 2130). Thus, PRA ultimately bears the burden of proving that MacDonald had a contractual obligation to pay money to Citibank and that PRA is the assignee of that obligation.
Because PRA bears this burden of proof, MacDonald‘s burden in support of his motion for summary judgment could “be satisfied by showing the absence of material fact with regard to” PRA‘s claim to be the assignee of MacDonald‘s obligation. Bromley v. Garey, 132 Idaho 807, 810, 979 P.2d 1165, 1168 (1999). If the materials that MacDonald submitted in support of his motion for summary judgment satisfied this threshold burden, then the burden shifted to PRA to demonstrate by way of admissible evidence that a genuine issue of material fact exists as to this issue. Sherer v. Pocatello Sch. Dist. No. 25, 143 Idaho 486, 489-90, 148 P.3d 1232, 1235-36 (2006).
MacDonald failed to meet this initial burden. Consequently, PRA was not required to present admissible evidence to resist MacDonald‘s motion for summary judgment. MacDonald could have shown the absence of evidence of an assignment “either by an affirmative showing with [his] own evidence or by a review of all [PRA‘s] evidence and the contention that such proof of an element is lacking.” Heidemann v. Broulim‘s Supermarket, 158 Idaho 606, 611, 349 P.3d 1197, 1202 (2015) (citing Antun v. Fred Meyer Stores, Inc., 150 Idaho 774, 776, 251 P.3d 602, 604 (Ct. App. 2011)).
Apparently, because MacDonald had no personal knowledge as to whether Citibank assigned its interest in his account to PRA, he made no effort to make an affirmative showing that there was no assignment to PRA. Instead, under
The only affidavit that MacDonald offered in support of his motion for summary judgment was that of his attorney. The affidavit represented that PRA had responded to the unspecified discovery requests and produced the Bill of Sale, the Affidavit of Patricia Hall, and thirteen account statements that were appended to counsel‘s affidavit as exhibits. Counsel‘s affidavit did not assert that the appended documents were the entirety of the evidence produced in response to the discovery request.
MacDonald‘s brief in support of his motion does represent that “Plaintiff has provided all the documents it will be able to produce to prove the validity of the debt it claims Defendant owes, as well as its evidence it owns the alleged debt.” There are two difficulties with this representation. The brief is silent as to whether counsel‘s affidavit contained all documents PRA provided in response to the discovery requests. The greater difficulty with this representation is that the factual assertions in a party‘s brief in support of a motion for summary judgment were not a basis for granting a motion for summary judgment at the time of the trial court‘s ruling.
IV. ATTORNEY‘S FEES
MacDonald requests an award of attorney‘s fees on appeal pursuant to
V. CONCLUSION
We reverse the decision of the district court. We remand with instructions to the district court to remand this case to the magistrate court with instructions to vacate the judgment entered in favor of PRA and conduct further proceedings. Costs to MacDonald.
Chief Justice BURDICK, and Justices EISMANN, JONES and HORTON concur.