Portfolio Recovery Assocs., LLC v. Migliore

Decision Date24 October 2013
Docket NumberNo. 20120700–CA.,20120700–CA.
PartiesPORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff and Appellee, v. Charles W. MIGLIORE, Defendant and Appellant.
CourtUtah Court of Appeals

OPINION TEXT STARTS HERE

Ronald Ady, Attorney for Appellant.

Christopher J. Rogers, Attorney for Appellee.

Judge MICHELE M. CHRISTIANSEN authored this Memorandum Decision, in which Judge JAMES Z. DAVIS concurred. Judge GREGORY K. ORME concurred in the result.

Memorandum Decision

CHRISTIANSEN, Judge:

¶ 1 Charles W. Migliore appeals the district court's grant of summary judgment to Portfolio Recovery Associates, LLC (PRA) and the district court's denial of his motion to amend that judgment. We affirm.

¶ 2 In July 2010, PRA filed a complaint alleging breach of contract against Migliore for failure to pay on a credit account (the Account) that PRA had purchased from Wells Fargo Bank. Approximately one year later, PRA moved for summary judgment on its claim, supporting its motion with affidavits and other documents. Migliore moved to strike two of PRA's affidavits, and the district court denied the motion. Thereafter, Migliore submitted a memorandum opposing PRA's motion for summary judgment, and PRA successfully moved to strike all of the exhibits attached to Migliore's memorandum as inadmissible hearsay. As a result, Migliore's opposition memorandum to PRA's summary judgment motion was unsupported by any admissible evidence or affidavits to controvert PRA's factual allegations.

¶ 3 On November 3, 2011, the district court granted PRA's motion for summary judgment, concluding that PRA had presented evidence sufficient to establish that it was entitled to judgment as a matter of law on its of breach of contract claim and that Migliore had failed to submit any contrary evidence to raise a genuine issue of material fact for trial. Migliore filed a rule 59 motion to amend the district court's grant of summary judgment. The district court conducted a hearing on the rule 59 motion, ultimately denying Migliore's motion and affirming its prior order. The district court entered final judgment on June 5, 2012, and Migliore timely filed his notice of appeal.

¶ 4 Migliore's principal argument on appeal is that the district court abused its discretion in denying his motion to strike and subsequently receiving and considering the two affidavits and the attached exhibits in ruling on PRA's motion for summary judgment. We review a district court's decision on a motion to strike affidavits submitted in support of or in opposition to a motion for summary judgment for an abuse of discretion. See Murdock v. Springville Mun. Corp., 1999 UT 39, ¶ 25, 982 P.2d 65;see also A Good Brick Mason, Inc. v. Spectrum Dev. Corp., 2010 UT App 145U, para. 2, 2010 WL 2244374 (mem.) (“The district court is granted broad discretion to decide motions to strike summary judgment affidavits.”). “An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court's ruling.” Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 32, 221 P.3d 256 (citation and internal quotation marks omitted).

¶ 5 Migliore first argues that the affidavit of David Sage, a representative of PRA, is inadmissible because the affidavit does not provide a factual foundation for the averments made therein, so that a “trier of fact could not independently assess whether Sage's conclusory assertions were well-founded in fact.” Affidavits supporting a motion for summary judgment “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.” Utah R. Civ. P. 56(e). However, “weighing credibility and assigning weight to conflicting evidence is not part of the district court's role in determining summary judgment.” Martin v. Lauder, 2010 UT App 216, ¶ 14, 239 P.3d 519. Absent an indication that the averments are obviously outside the personal knowledge of the affiant or otherwise inadmissible, the district court may properly accept the affidavit at face value. See A Good Brick Mason, 2010 UT App 145U, para. 3, 2010 WL 2244374;see also id. ([O]ur role is not to cross-examine the affidavit by conjecture; rather, we take it at face value....” (alteration and omission in original) (citation and internal quotation marks omitted)). Thus, the district court did not abuse its discretion in accepting the Sage affidavit's averments that Sage was a custodian of records for PRA and, by virtue of that position, had knowledge of PRA's business records processes and personal knowledge regarding the Account. Cf.Utah R. Evid. 602 (“Evidence to prove personal knowledge may consist of the witness's own testimony.”).

¶ 6 Migliore next argues that Sage's averment that [the Account] was sold and/or assigned to [PRA] by Wells Fargo Bank” is inadmissible because the assignment document is not attached to the affidavit. SeeUtah R. Civ. P. 56(e) (“Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”). However, the district court determined that Sage had personal knowledge that the Account had been assigned to PRA by Wells Fargo Bank based on his knowledge, memory, and review of PRA's records. See Superior Receivable Servs. v. Pett, 2008 UT App 225, ¶ 10, 191 P.3d 31. If documents are to be introduced through an affidavit, sworn copies of such documents must be attached to the affidavit. SeeUtah R. Civ. P. 56(e). But it does not follow, and rule 56(e) does not on its face require, that all averments in an affidavit be supported by documentation. Id. Rather, an affiant may attest to facts within his personal knowledge notwithstanding that documentary evidence may exist to independently show the same facts. Cf. Weststar Exploration Co. v. Cochrane Res., Inc., 2008 UT App 169U, paras. 7–8, 2008 WL 2058252 (concluding that affidavit testimony that the plaintiff's predecessor-in-interest had been assigned an ownership interest in a pipeline, unsupported by any documents evidencing the assignment, was sufficient to raise an issue of material fact and preclude summary judgment against the plaintiff). Accordingly, the district court did not abuse its discretion in accepting Sage's averment that the Account had been assigned to PRA by Wells Fargo Bank.

¶ 7 Migliore also challenges the admission of a bill of sale and affidavit regarding the sale of accounts attached to the Sage affidavit. Migliore asserts that these documents are inadmissible hearsay because the Sage affidavit does not provide a proper foundation to admit the documents under the business records exception to the rule against hearsay.1SeeUtah R. Evid. 803(6). The district court determined that the Sage affidavit included sufficient foundation to admit the documents as business records. This determination was within the district court's discretion. As discussed above, the district court was entitled to take the averments in the Sage affidavit regarding Sage's qualifications as a records custodian at face value. Sage attested that he was an authorized representative and custodian of records for PRA and that he was familiar with the manner and method by which PRA maintained its books and records—specifically the manner and method by which it maintained its records of assigned debts. This is a sufficient evidentiary basis for the district court's determination that an adequate foundation existed to receive the attached documents as business records. See Superior Receivable Servs., 2008 UT App 225, ¶ 10 & n. 2, 191 P.3d 31. The district court therefore did not abuse its discretion in denying Migliore's motion to strike the Sage affidavit and the exhibits thereto.

¶ 8 Migliore next argues that the affidavit of Miriam Olguin and the documents attached thereto are inadmissible. First, Migliore asserts that the affidavit did not provide an adequate foundation to establish Olguin as a records custodian for Wells Fargo Bank. In her affidavit, Olguin attests that she is the custodian of records for the attached documents and certifies the authenticity of the documents in compliance with the requirements of the business records exception,seeUtah R. Evid. 803(6). For the same reasons discussed above, we conclude that the district court did not abuse its discretion in accepting these averments and in determining that the Olguin affidavit provided sufficient foundation to admit the attached documents. See supra ¶¶ 5–7.

¶ 9 Migliore also argues that the Olguin affidavit is inadmissible because Wells Fargo Bank reserved the right to designate another custodian of records in the event that an appearance was required. Migliore argues that the affidavit is equivalent to direct testimony by Olguin and that the affidavit is therefore inadmissible unless Olguin herself can be cross-examined. However, our supreme court has observed that, unlike a deponent, an affiant is not subject to cross-examination. Webster v. Sill, 675 P.2d 1170, 1172 (Utah 1983). Migliore asserts that our decision should be governed by cases which hold that an affidavit may be struck if the affiant later invokes her Fifth Amendment privilege at a deposition or trial in order to shield the affidavit testimony from scrutiny. See, e.g., United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir.1990) (concluding that the district court properly struck an affidavit after the affiant invoked his Fifth Amendment privilege at his deposition). However, Migliore has never attempted to depose Olguin or any other representative of Wells Fargo Bank in order to test the foundational averments made by Olguin in her declaration. SeeUtah R. Civ. P. 56(e) ( “The court may permit affidavits to be supplemented or opposed by depositions....”). Migliore has also not shown, or even suggested, that another Wells...

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  • Mitchell v. Recontrust Co. NA
    • United States
    • Utah Court of Appeals
    • April 28, 2016
    ...to a motion for summary judgment for an abuse of discretion.” Portfolio Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 4, 314 P.3d 1069. Likewise, “[w]e review the [district] court's judicial notice of prior adjudicated facts under Rule 201 of the Utah Rules of Evidence for abuse of ......
  • Pulham v. Kirsling
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    • Utah Court of Appeals
    • April 12, 2018
    ...would have been a result more favorable to the complaining party." Portfolio Recovery Assocs., LLC v. Migliore , 2013 UT App 255, ¶ 15, 314 P.3d 1069 (quotation simplified); see also Utah R. Civ. P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the pr......
  • Mower v. Simpson
    • United States
    • Utah Court of Appeals
    • February 2, 2017
    ...discretion to decide motions to strike summary judgment affidavits." Portfolio Recovery Assocs. v. Migliore , 2013 UT App 255, ¶ 4, 314 P.3d 1069 (citation and internal quotation marks omitted). "We review a district court's decision on a motion to strike affidavits submitted in support of ......
  • White v. White
    • United States
    • Utah Court of Appeals
    • August 3, 2017
    ...he must also demonstrate that the alleged error was harmful. See Portfolio Recovery Assocs., LLC v. Migliore , 2013 UT App 255, ¶ 15, 314 P.3d 1069. ¶ 17 Finally, Dean requests that, should he prevail, we award him attorney fees and costs on appeal and reverse the district court's award of ......
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