Unifund CCR Partners v. Zimmer

• Decision Date: 11 March 2016
• Docket Number: No. 15–086.,15–086.
• Citation: 144 A.3d 1045,2016 VT 33
• Parties: UNIFUND CCR PARTNERS v. Daniel ZIMMER.
• Court: Vermont Supreme Court

144 A.3d 1045

2016 VT 33

UNIFUND CCR PARTNERS

v.Daniel ZIMMER.

No. 15–086.

Supreme Court of Vermont.

March 11, 2016.

Nicole A. Killoran of Bauer Gravel Farnham, Colchester, and Alan H. Abes and Elizabeth M. Shaffer of Dinsmore & Shohl LLP, Cincinnati, Ohio, for Plaintiff–Appellant.

C. Creek Kelsey of Law in the Public Interest, L ³C, Thetford Center, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

EATON

, J.

¶ 1. In this appeal, Unifund CCR Partners (Unifund), the alleged assignee of charged-off debt owed by defendant under a credit card account opened with AT & T Universal/Citibank (Citibank), challenges the trial court's decision entering judgment in favor of defendant in an action for collection. For the reasons stated herein, we affirm.

¶ 2. Unifund, a debt buyer, is in the business of purchasing large portfolios of charged-off debts from original debt holders in the hope of eventually collecting from the original debtors.¹ On October 25, 2013, Unifund asserted the right to judgment against defendant for charged-off debt in the amount of $2453.22, plus costs and statutory prejudgment interest of 12% under 12 V.S.A. § 2903

, for a credit card account opened in defendant's name with Citibank. Unifund also alleged that defendant was unjustly enriched in that amount “by virtue of non-payment on an account.”

¶ 3. At trial, Unifund asserted that it was authorized to collect the debt by a series of limited assignments, from Citibank to Pilot Receivables Management, LLC (Pilot) on June 18, 2012, and from Pilot to Unifund CCR LLC (UCL) and UCL to Unifund, both on June 1, 2013. To establish standing to enforce the underlying debt, Unifund offered testimony of Brian Billings, who spoke in support of the assignment from Citibank to Pilot, and Elizabeth Andres, who spoke in support of the assignments from Pilot to UCL and UCL to Unifund.

¶ 4. The trial court found these documents to be inadmissible as hearsay because Unifund had failed to establish the necessary foundation for their admission. Specifically, the trial court found that although Mr. Billings and Ms. Andres testified to having been designated as custodians of records within their respective business organizations, neither knew anything about the assignments outside their review in preparation for litigation. Because “[n]either had sufficient association with the transaction to offer a credible opinion that the information contained in the electronic data was ‘made at or near the time [of its creation] by, or from information transmitted by, a person with knowledge,’ ” the trial court was unable to conclude that either Mr. Billings or Ms. Andres was qualified to authenticate the documents as business records under Vermont Rule of Evidence 803(6)

.

¶ 5. Furthermore, the trial court found Ms. Andres' testimony as to the assignments from Pilot to UCL and UCL to Unifund to be particularly difficult to credit. Specifically, the trial court found it troubling that, although she claimed to have the custodial qualifications on behalf of both assignor and assignee, Ms. Andres was unable to reconcile significant inconsistencies between the copy of the assignment from UCL to Unifund that was attached to the complaint and the copy produced at trial. Although the documents were dated the same day, they had different signatories—the document included with the complaint was signed by Morgan Smith and Autumn Hopkins, whereas the document produced at trial was signed by Jessica Stevens and Autumn Bloom. Despite testimony from Ms. Andres that Autumn Hopkins and Autumn Bloom were the same person who had recently been married, the trial court found that this did not explain why Ms. Hopkins/Bloom used different last names in signatures made on the same day, nor did it explain why Morgan Smith's signature appears on one version while Jessica Steven's signature appears on another. The trial court found that these unexplained inconsistencies threw into question the chain of ownership of the account subject to the complaint for collection.

¶ 6. The trial court also found that, even if the assignments were admissible as a business record under Rule 803(6)

, Unifund had failed to establish standing. The trial court reasoned that the documents proffered as assignments, each of which contained the same language, transferred the right in receivables for collection purposes only, and not title.² Without an ownership interest, the trial court found that Unifund had no cognizable interest in the account, and thus, no standing to raise claims regarding the account.

¶ 7. The trial court further noted that, regardless of whether the assignments were admissible or Unifund had standing, Unifund had failed to demonstrate that there ever was a contract between Citibank and defendant, or the terms of any such contract. The trial court was satisfied by testimony from both defendant and his father that it was father, and not defendant, who applied for the credit card in defendant's name, without defendant's knowledge or authority, and father who was responsible for nearly all of the charges attributed to the account. The trial court considered evidence that account statements were sent to father's home address in New Jersey and that father paid those statements until financial difficulties prevented him from doing so. Although the trial court acknowledged that defendant, who lived in Vermont, used the credit card “for a few purchases,” it did not find those purchases, together with defendant's acknowledgement that he noticed that the card was in his name, to be sufficient to support the inference of a contractual relationship between Citibank and defendant for every charge attributed to the credit card. Further, the trial court found the Citibank Card Agreement to be general and incomplete as to the nature of the interest rate, and the inclusion of some, but not all, of Citibank's billing statements, raised questions as to the reliability of the debt owed at the time of charge off.

¶ 8. Finally, the trial court found that Unifund failed to support its theory of recovery under quasi contract or unjust enrichment because its proofs were all related to its contract claim. The trial court concluded by finding that any claim that defendant was unjustly enriched in the amount of the outstanding balance was “wholly at odds with the evidence that most of the purchases charged to the card were made by his father.” For these reasons, the trial court entered judgment for defendant on Unifund's complaint.

¶ 9. Unifund raises four arguments on appeal: (1) that documents proffered to establish the assignment of defendant's debt were not inadmissible as business records; (2) that the assignment of the right to collect is itself sufficient for standing; (3) that Unifund sufficiently established the terms of the contract between defendant and Citibank, including the contractual interest rate; and (4) that Unifund demonstrated a basis to recover for unjust enrichment.

¶ 10. Our standard of review is two-tiered. We are deferential to a trial court's findings of fact, and will uphold them unless clearly erroneous. Clayton v. Clayton Invs., Inc., 2007 VT 38A, ¶ 9, 182 Vt. 541, 929 A.2d 713

(mem.); see also V.R.C.P. 52(a)(2) ; Mann v. Levin, 2004 VT 100, ¶ 17, 177 Vt. 261, 861 A.2d 1138 (“[W]e will uphold the court's factual findings unless, taking the evidence in the light most favorable to the prevailing party, and excluding the effect of modifying evidence, there is no reasonable or credible evidence to support them.”). We review the trial court's legal conclusions de novo, and will uphold them if reasonably supported by the findings. Clayton , 2007 VT 38A, ¶ 9 (citing Luneau v. Peerless Ins. Co., 170 Vt. 442, 444–45, 750 A.2d 1031, 1033 (2000) ).

I. Contractual Claim

¶ 11. Unifund challenges the trial court's finding that the evidence was insufficient to establish a valid and enforceable agreement between Citibank and defendant as a matter of law. To prevail on the contractual claim requires sufficient evidence to support a finding that defendant was party to a contract with Citibank, that he defaulted on a contractual debt by failing to make payments, that there was an established amount due and owing, and that there was a complete chain of assignment from the original creditor (Citibank) to the current debt holder (Unifund), conferring standing upon the debt holder to seek collection.

¶ 12. We begin with Unifund's challenge to the trial court's evidentiary ruling. Unifund argues that the trial court should have admitted the documents purporting to assign defendant's account from Citibank to Unifund as business records under V.R.E. 803(6)

. Specifically, Unifund contends that the trial court applied the incorrect legal standard for business records by requiring Unifund's witnesses to have an “association with the transaction,” resulting in the wrongful exclusion of the alleged assignments and account documents.

¶ 13. Under Rule 803(6)

, admission of a document as a business record requires testimony of the custodian or other qualified witness (1) that the record is “kept in the course of regularly conducted business activity,” (2) that it was “made at or near the time by, or from information transmitted by, a person with knowledge,” and (3) that it “was the regular practice of that business activity to make” the record. As a caveat, Rule 803(6) precludes admission where “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Id.

¶ 14. The purpose of the business record exception is to permit the admission of reliable and accurate records, not to facilitate the introduction of otherwise incompetent evidence merely because it appeared in a record made in the regular course of business. See Gray v. L.J. Navy Trucking Co., 475 F.2d 545, 548 (6th Cir.1973)

. For this reason, Rule 803 recognizes an exception for business records that have been deemed...