On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-23345-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011
Before Judges Messano and Yannotti.
Plaintiff, Cavalry Portfolio Services, LLC, appeals from judgment entered in favor of defendant, Harry J. Kumburis, dismissing plaintiff's complaint following a trial in the Law Division, Special Civil Part. We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand for a new trial.
On August 2, 2010, plaintiff filed a complaint alleging it was the ultimate assignee of a consumer credit contract between defendant and Washington Mutual Savings Bank (WaMu), and that defendant was in breach of that contract. The complaint alleged defendant owed $14,671.10, plus additional interest.*fn1 On September 13, defendant filed his answer, denying the alleged debt, claiming "[t]he goods or services were not received" and that he "never made charges" to the account. Trial was held on December 2.
Before any testimony, the judge inquired whether plaintiff's witness, Cynthia Sharpe, "ha[d] personal knowledge of the business records of the underlying creditor," i.e., WaMu. Plaintiff's counsel responded that Sharpe did, citing "monthly statements . . . that were furnished by [WaMu]." Defendant objected noting he was disputing only "$7,000 of the [debt]."
The colloquy between plaintiff's counsel and the judge continued regarding the admission of monthly credit card statements in defendant's name:
Judge: All right. And the existence of the underlying debt would be reflected in the business records of [WaMu]?
Judge: All right. And Ms. Sharpe . . . is not an employee of [WaMu]?
Counsel: [WaMu] doesn't exist anymore . . . .
Judge: Well, Ms. Sharpe is not an employee of [WaMu], so how could she be the proper custodian of records for those bank records, and support the admission of the bank records under the hearsay 803 series?
[T]he fact is that Ms. Sharpe is not a business custodian of [WaMu], and, therefore, she's not properly qualified to authenticate the underlying business records. The underlying business records are not authenticated, they [sic] cannot rely ...