On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-004087-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Fasciale.
Defendant Lamiaa Gouda (Gouda) appeals from a credit card judgment entered after a Special Civil Part bench trial. Defendant contends primarily that she was prejudiced by (1) the late submission of a redacted computer-generated document, (2) testimony from a surprise witness, and (3) the introduction of documents into evidence without a proper foundation. We agree and reverse.
Plaintiff Gemini Capital Group, LLC (Gemini) buys credit-card debt and attempts to collect from certain debtors. Gemini argued that in August 2009 it purchased from Turtle Creek Assets, Ltd. (Turtle Creek) certain debt that Turtle Creek had purchased from Chase Bank USA, N.A. (Chase). Gemini contended that Gouda maintained a credit card with Chase and defaulted on several payments. Gemini filed its complaint and sought to collect the debt that Gouda allegedly incurred. Gouda denied both that she had any debt and that she had entered into a credit card agreement with Chase.
In May 2010, Gemini filed a summary judgment motion and relied on a certification from Roger Neustadt. Gemini had listed Neustadt in its interrogatory answers as a witness with relevant knowledge. Neustadt identified himself in his certification as "a member of" Gemini and as the custodian of records. He stated that he performed a "review of the computer records" and determined that Gouda maintained a balance on her account. Gemini did not produce the referenced computer records, however.
Gouda opposed the motion and argued that Gemini failed to produce the computer records on which Neustadt relied. Gouda also contended that Gemini did not produce a cardholder agreement between her and Chase, and that the bills of sale that purportedly established the assignment of the debt from Chase to Turtle Creek to Gemini were not authenticated.
In June 2010, the court denied the motion and issued a three-page written opinion.*fn1 The court stated that genuine issues of material fact existed concerning "whether [Gouda's] account exist[ed], given the incomplete nature of [Gemini's] records, and whether [Gemini] in fact owns [Gouda's] alleged account, i.e., whether it was actually transferred in the bill of sale transactions."
In August 2010, a one-day bench trial occurred. Gemini produced one witness and introduced into evidence four separate exhibits.*fn2 Gouda did not testify. Gemini produced Ryan Fealey as its trial witness, an individual it never identified in discovery, but someone who had worked with Neustadt. Although Gemini knew several days before the trial that Neustadt was unavailable to testify, it never notified Gouda that it would call Fealey as its witness. Gouda's attorney objected to the testimony, but the judge permitted Fealey to testify and stated:
What's the -- what's the harm. I mean, in as much as he's going to say, virtually, the same thing as the other witness, Mr. Neustadt, who answered, is going to say. He works with him, he -- he has the same information to provide.
Although it was not certain whether Fealey would provide the same information as Neustadt, the judge determined that there was no prejudice. Gouda's counsel objected repeatedly to various questions during Fealey's testimony.
As Vice President of Operations of Gemini, Fealey testified that his responsibilities included "analyzing prospective portfolios of debt purchases." The judge permitted Fealey to render opinion testimony concerning the recordkeeping practices of Chase. Fealey testified, based on his experience of purchasing several other Chase portfolios, that P-1 through P-4 were prepared in the ordinary course of Chase's business. As a result, the judge admitted the documents into evidence over the strenuous objections of Gouda's counsel.
Gouda's counsel learned during the direct examination of Fealey that the bill of sale from Chase to Turtle Creek (P-1), and bill of sale from Turtle Creek to Gemini (P-2), referenced an identical, redacted computer-generated attachment purporting to be a printout that listed Gouda's name, account number, and balance due. Although it had access to ...