Melman v. Fia Card Servs., N.A.

• Decision Date: 27 February 2012
• Docket Number: No. A11A0784.,A11A0784.
• Parties: MELMAN v. FIA CARD SERVICES, N.A.
• Court: Georgia Court of Appeals

11 FCDR 3346
312 Ga.App. 270
718 S.E.2d 107

MELMAN
v.
FIA CARD SERVICES, N.A.

No. A11A0784.

Court of Appeals of Georgia.

Oct. 28, 2011.Certiorari Denied Feb. 27, 2012.

[718 S.E.2d 108]

William Ralph Carlisle Jr., for appellant.

Dennis E. Henry, Salvatore L. Schiappa III, for appellee.

PHIPPS, Presiding Judge.

[312 Ga.App. 270] John Melman appeals from the trial court's grant of summary judgment to FIA Card Services, N.A. on its suit against him on an account. Melman contends that FIA was not entitled to summary judgment because it failed to produce all records referenced in the affidavit it submitted in support of the motion, and it failed to explain discrepancies between the affidavit and the contents of the exhibits it did produce. For the reasons that follow, we affirm.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We review the trial court's grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party. ¹

FIA sued Melman in July 2008 alleging that he owed $38,560 on an account. Melman filed an answer generally denying the debt.

FIA moved for summary judgment. To support its motion, FIA submitted the affidavit of an FIA operation analyst who averred, among other things, that: she was familiar with FIA's business records, including those involved in this lawsuit; FIA's business records were kept under her supervision and control; and in making the affidavit she relied upon said business records and upon her personal knowledge. The operation analyst averred further that Melman had applied for and obtained credit from FIA; that Melman had made purchases and received advances from FIA which, together with other charges, totaled $38,560; and that Melman refused demands for payment. Attached to the affidavit were, inter alia, a credit card statement bearing the name “Bank of America” and showing a balance due of $38,560; and a copy of a form notice bearing the heading “Bank of America” followed by “Important Notice of Change in Terms” and “Credit Card Agreement.” In the change in terms section, the notice stated that Bank of America Corporation and MBNA Corporation

[718 S.E.2d 109]

had merged, that the organizations were creating a credit card bank and consolidating “our credit card program into one bank: FIA Card Services, N.A.,” and that effective October 2006 “your Bank of America credit card account will be issued and administered by FIA Card Services, N.A.”

[312 Ga.App. 271] In response to FIA's motion, Melman submitted a brief in which he asserted that FIA had not produced any evidence of an accepted credit application, of a contract between him and FIA, or that he was indebted to FIA. Melman also asserted that the operation analyst lacked personal knowledge of his business dealings. Melman submitted no evidence in response to FIA's motion for summary judgment.

1. Melman contends that FIA failed to establish the admissibility of the exhibits attached to the affidavit as business records pursuant to OCGA § 24–3–14(b). Specifically, he argues that (a) the affidavit failed to specifically identify, describe or reference the exhibits as being FIA's business records, and (b) the operation analyst did not swear that the documents were truthful, accurate or complete. Pretermitting the question of whether Melman waived these arguments by not raising them below,² they are without merit.

OCGA § 24–3–14(b) provides:

Any writing or record ... made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

(a) Here, the operation analyst stated under oath, in relevant part, that she maintained and was familiar with FIA's business records, including the records involved in the instant lawsuit; that FIA's business records were made in the regular course of the business; that it was the regular course of FIA's business to make such records at or near the times of the transactions; and that she relied upon said business records and her personal knowledge of the transactions in making the affidavit. She further averred that FIA [312 Ga.App. 272] accepted Melman's credit application, activated a credit card account on his behalf, and sent him a copy of the credit card agreement “attached hereto as Exhibit 1”; and that Melman made purchases and received advances under the account “as shown by Exhibit ‘2’ attached hereto.” Interpreting and applying OCGA § 24–3–14(b) liberally,³ we hold that FIA established the exhibits' admissibility as business records.⁴

(b) The documents were not rendered inadmissible by the fact that the affidavit, which was sworn, contained no express statement regarding their truthfulness, accuracy or completeness.⁵ The court did not

[718 S.E.2d 110]

abuse its discretion in admitting the documents.⁶

2. Melman contends that FIA was not entitled to summary judgment because it failed to produce all papers or parts thereof referenced in the affidavit, as required by OCGA § 9–11–56(e). Specifically, he points to FIA's failure to attach the credit application he allegedly submitted to FIA, the credit card agreement, and all credit card statements showing the charges and advances made and allegedly due FIA.

OCGA § 9–11–56(e) provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the 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....

To show it was entitled to judgment against Melman on the credit card account, FIA was required to show that Melman entered into an agreement or established an account with FIA, accumulated a balance and failed to pay. ⁷ The Bank was required to attach to the [312 Ga.App. 273] affidavit copies of the records relied upon and...