Cook v. Midland Funding, LLC.
Decision Date | 13 May 2016 |
Docket Number | 2140786. |
Parties | Leslie COOK v. MIDLAND FUNDING, LLC. |
Court | Alabama Court of Civil Appeals |
Rhonda Steadman Hood and Kenneth J. Lay of Hood & Lay, L.L.C., Birmingham, for appellant.
Jason B. Tompkins and Chase T. Espy of Balch & Bingham LLP, Birmingham; and Richard Moxley III, Charles E. Byrom, and Brandy L. Chamblee of Holloway & Moxley, LLP, Montgomery, for appellee.
On Application for Rehearing
This court's opinion of March 11, 2016, is withdrawn, and the following is substituted therefor.
This appeal arises from a summary judgment in favor of Midland Funding, LLC ("Midland"), in an action against Leslie Cook in which Midland sought to recover $16,083.09 allegedly due on a credit account. The facts in the record on appeal indicate the following. Cook opened a credit-card account ("the account") with Chase Bank, USA, N.A. ("Chase"), in 1995. The last purchase on the account was made in July 2008, and the last payment on the account was remitted on December 22, 2009. Thereafter, Cook allegedly failed to remit to Chase the balance due on the account ($16,083.09), Chase charged off the account, and Midland purchased from Chase a pool of charged-off accounts, which, according to Midland, included the account.
On October 17, 2013, Midland filed a complaint in the Etowah Circuit Court seeking to recover $16,083.09 from Cook. Midland asserted two causes of action: breach of contract and account stated. On November 20, 2013, Midland filed a motion seeking a default judgment in its favor, and Midland supported its motion with the affidavits of Erin Hale, an employee of Midland Credit Management, Inc. ("MCM"), the company that services Midland's accounts, and Chiahua Mixon, an employee of Chase, and with certain redacted documents and billing statements, attached to the affidavits as exhibits, intended to demonstrate that Midland had purchased a number of accounts, including the account, from Chase in 2011. Among the documents filed in support of its motion, Midland included a generic credit-card application. The circuit court entered a default judgment in favor of Midland on November 20, 2013.
On December 17, 2013, Cook filed a motion seeking to set aside the default judgment in which he admitted that he had been served with the summons and complaint and that he had failed to file an answer in the circuit court, but, he asserted, he had served a timely answer on Midland. The circuit court entered an order setting aside the default judgment.
On February 18, 2014, Midland filed a motion seeking a summary judgment in which it argued that no issues of material fact existed. Cook filed an answer in which he denied Midland's allegations and asserted various defenses. Thereafter Cook filed a summary-judgment motion. Among other things, Cook argued that Midland had failed to produce his credit-card application or any contract or agreement between Cook and Chase or between Cook and Midland; thus, according to Cook, Midland lacked "standing" to pursue its claims.1 Cook attached to his motion his own affidavit in which he testified that he had never entered into a contract with Midland and that he did not owe any debt to Midland. Cook also filed a motion to strike the affidavits of Hale and Mixon along with the redacted documents and billing statements submitted with their affidavits. According to Cook, the affidavit testimony was "meaningless" or "defective" because neither Hale nor Mixon had personal knowledge regarding the account.
A two-day motion hearing was held on August 13, 2014, and February 2, 2015, at which the circuit court heard arguments of counsel. On February 13, 2015, the circuit court entered a summary judgment in favor of Midland and denied Cook's motion for a summary judgment. It awarded Midland damages in the amount of $16,083.09, and it denied Cook's motion to strike. Cook filed a timely postjudgment motion, which the circuit court denied on May 15, 2015, after a hearing. Cook filed a timely notice of appeal on June 26, 2015.
Stacey v. Peed, 142 So.3d 529, 530–31 (Ala.2013).
Cook complains that the circuit court erred by failing to strike the affidavits of Hale and Mixon, that the circuit court erred by denying his motion for a summary judgment2 regarding one of Midland's claims based upon his argument that the applicable statute-of-limitations period had expired, and that the circuit court erred by entering a summary judgment in favor of Midland on its breach-of-contract claim or its account-stated claim.
Cook contends that the affidavits of Hale and Mixon, which were submitted in support of Midland's motion for a summary judgment, were insufficient and, thus, due to be struck. According to Cook, the affidavits failed to comply with the mandates of Rule 56(e), Ala. R. Civ. P., which requires, in pertinent part, the following:
Specifically, according to Cook, the affidavits were not based upon personal knowledge. The affidavit of Hale is as follows:
The affidavit of Mixon, the employee of Chase, is as follows:
Hale and Mixon each asserted that they had personal knowledge of certain admissible facts to which they were competent to testify, and they attached to their affidavits exhibits intended to support their testimony.
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... Portfolio Recovery Associates, LLC Assignee of Synchrony Bank/HH Gregg, Respondent, v. Jennifer Campney, ... this jurisprudence is persuasive. See Leslie Cook v ... Midland Funding, LLC , 208 So.3d 1153 (Ala. Civ. App ... ...