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Midland Funding, LLC v. Fernandez

Superior Court of New Jersey, Appellate Division

May 31, 2013

MIDLAND FUNDING LLC, Plaintiff-Respondent,
v.
MICHELLE FERNANDEZ, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 15, 2013

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. DC-2457-12.

Michelle Fernandez, appellant pro se.

Pressler and Pressler, LLP, attorneys for respondent (Lawrence J. McDermott, Jr., on the brief).

Before Judges Axelrad and Sapp-Peterson.

PER CURIAM

Defendant Michelle Fernandez appeals from the grant of summary judgment to plaintiff, Midland Funding, the assignee of a credit card previously issued to her by Bank of America (BOA). Defendant claimed there were disputed facts that justified denial of summary judgment. However, beyond her allegations and mere denials, the court found she presented no competent proof that would warrant denying plaintiff's claim. On appeal, defendant contends the court improperly relied on inadmissible hearsay documents, applied the incorrect standard of proof, and violated canons of judicial conduct. She also asserts defenses, for the first time, under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. § 1692g(c). We are not persuaded by these arguments and affirm.

We recite the facts and evidence presented in the light most favorable to defendant, the nonmoving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On June 4, 2010, plaintiff purchased a portfolio of debt from BOA and its subsidiary FIA Card Services, N.A., which included a revolving VISA credit card account opened on August 12, 2002 by defendant and charged off on March 29, 2008. Records reflect that after the account was credited with two $160 payments by phone on March 31, 2008, the outstanding balance on the account was approximately $3900.

When plaintiff's pre-litigation attempts at collection were unsuccessful, it filed suit against her for the outstanding balance plus interest and costs.[1] Defendant filed an answer denying plaintiff's allegations, elaborating that she "can neither admit nor deny [p]laintiff's statement on the grounds that [d]efendant does not have current knowledge, possession, custody, or control of any contractual agreement with [p]laintiff(s)."

Plaintiff moved for summary judgment, supported by billing statements for the period from June 2007 through April 2008; defendant's credit report dated October 7, 2010, reflecting the underlying debt and assignment; a June 8, 2011 affidavit of sale and certificate of debt executed by Melinda Stephenson, a bank officer of FIA Card Services; a March 19, 2012 affidavit of Paula Hansen, a legal specialist for plaintiff's servicer; and brief. Defendant opposed the motion, contending she "never owned the subject account" and challenged the authenticity of the billing statements.

Following oral argument on June 20, 2012, the court granted plaintiff's motion and entered judgment in plaintiff's favor in the amount of $3922.34 plus costs. This appeal ensued.

On appeal, defendant argues: (1) the court improperly admitted Stephenson's and Hansen's affidavits into evidence as they failed to comply with the business records exception to the hearsay rule, N.J.R.E. 803(c)(6); (2) the documents submitted by plaintiff do not meet the requirements to obtain a default judgment as established by Rule 6:6-3(a); (3) the court erroneously stated that plaintiff did not need to prove it had the right to collect on this debt; (4) the FDCPA holds that failure to dispute a debt does ...


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