MIDLAND CREDIT MANAGEMENT, INC. v. DENISE SIPPLE (DC-003182-20, MONMOUTH COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0778-20
MIDLAND CREDIT
MANAGEMENT, INC.,
current assignee, [SYNCHRONY
BANK (LOWES) ORIGINAL
CREDITOR], [SYNCHRONY
BANK (QCARD), original
creditor],
Plaintiff-Respondent,
v.
DENISE SIPPLE,
a/k/a DENISE F. SIPPLE,
Defendant-Appellant.
____________________________
Submitted January 4, 2022 – Decided June 29, 2022
Before Judges DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No.
DC-003182-20.
Zemel Law, LLC, attorneys for appellant (Daniel
Zemel and Steven Benedict, on the briefs).
Hinshaw & Culbertson LLP, attorneys for respondent
(Han Sheng Beh, of counsel and on the brief).
PER CURIAM
Defendant Denise Sipple appeals from the grant of summary judgment to
plaintiff, Midland Credit Management Inc., the assignee of credit cards
previously issued to her by Synchrony Bank. 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, ignored an
executive order prohibiting the initiation and adjudication of debt collection
matters during the COVID-19 pandemic, and mistakenly exercised its discretion
in denying her motions to amend her answer and dismiss for failure to provide
discovery. We are not persuaded by these arguments and affirm.
I.
On November 20, 2018 and February 19, 2019, plaintiff purchased
portfolios of debt from Encore Capital Group, Inc. and its subsidiary Synchrony
Bank. These portfolios included revolving credit card accounts which defendant
opened on March 18 and June 5, 2018 and which plaintiff charged off on October
24, 2018 and January 11, 2019. The record shows that after defendant made
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purchases in May and June 2018, the outstanding balance on the accounts were
$2,419.60 and $3,058.58, respectively.
When plaintiff's pre-litigation attempts at collection failed, it sued
defendant for the outstanding balance plus interest and costs. Defendant filed
an answer denying plaintiff's allegations, averring that she "does not have
sufficient knowledge or information to form a belief about the truth or falsity of
the plaintiff's address." As an affirmative defense, defendant claimed that debt
collection agencies were barred by an "executive order" from initiating and
adjudicating debt collection matters during the COVID-19 state of emergency.
Defendant also requested plaintiff produce "all documents or papers" that
established the chain of title of the debts. Plaintiff subsequently produced all
salient documents related to the matter.
Defendant then filed an amended answer and moved for transfer to the law
Division, asserting counterclaims and a third-party complaint against plaintiff
for violations of the Fair Debt Collection Practices Act (FDCPA).
In the Law Division, plaintiff moved for summary judgment, filing its
brief supported by bill statements for the period from February 2018 through
January 2019; defendant's credit report; the credit card agreement; four letters
to defendant explaining that plaintiff's account had been acquired by plaintiff;
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two affidavits of sale and certificates of debt executed by Lynne Fisher, senior
vice president of Synchrony Bank; and a July 16, 2020 affidavit of Taylor
Madison, a legal specialist for plaintiff's servicer. Defendant filed a cross-
motion for summary judgment, contending she "do[es] not owe any money to
plaintiff"; lacked any knowledge that her accounts were sold to plaintiff;
challenged the contractual relationship between the parties; and claimed that all
defendant's certifications supporting its arguments were inadmissible hearsay.
She also filed a motion to dismiss for failure to provide discovery.
Following oral argument, the court granted plaintiff's motion and entered
judgment in plaintiff's favor in the amount of $5,478.18 plus costs. The court
found that no genuine issue of material fact existed which prevented summary
judgment in favor of plaintiff. The court found that plaintiff provided sufficient,
credible evidence in the record that established the nexus between the accounts
and defendant. The court also found the executive order and FDCPA argument
meritless, explaining that no directive existed that prevented agencies from
initiating debt collection matters during the COVID-19 pandemic. This appeal
ensued.
On appeal, defendant argues: (1) the court improperly admitted Madison's
affidavit into evidence as it failed to comply with the business record exception
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to the hearsay rule, N.J.R.E. 803(c)(6); (2) the court erroneously found the
executive order and FDCPA inapplicable; and (3) the court abused its discretion
in denying her motion to amend and motion to dismiss for failure to provide
discovery.
II.
We review a grant of summary judgment de novo. RSI Bank v.
Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (citing Bhagat v.
Bhagat, 217 N.J. 22, 38 (2014)). Summary judgment will be granted when "the
competent evidential materials submitted by the parties" viewed in the light most
favorable to the non-moving party, show that there are no "genuine issues of
material fact" and that "the moving party is entitled to summary judgment as a
matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)
(quoting Bhagat, 217 N.J. at 38); see also R. 4:46-2(c). "An issue of material
fact is 'genuine only if, considering the burden of persuasion at trial, the
evidence submitted by the parties on the motion, together with all legitimate
inferences therefrom favoring the non-moving party, would require submission
of the issue to the trier of fact.'" Ibid. (quoting Bhagat, 217 N.J. at 38). We owe
"no special deference" to the motion judge's legal analysis. RSI Bank, 234 N.J.
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at 472 (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016)).
III.
Defendant argues that Madison's affidavit was inadmissible hearsay
therefore the court should not have considered it. Specifically, she claims that
Madison lacked personal knowledge of the business records, contrary to the
hearsay exceptions. We are persuaded the court properly considered Madison's
affidavit because it met the "business records" exception under N.J.R.E.
803(c)(6).
To satisfy the business records hearsay exception, a proponent must
demonstrate that "the writing [was] made in the regular course of business," it
was "prepared within a short time of the act, condition or event being described,"
and "the source of the information and the method and circumstances of the
preparation of the writing must justify allowing it into evidence." N.J. Div. of
Youth and Fam. Servs. v. M.C. III, 201 N.J. 328, 347 (2010) (alteration in
original) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)). "The purpose
of the business records exception [to the hearsay rule] is to 'broaden the area of
admissibility of relevant evidence where there is necessity and sufficient
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guarantee of trustworthiness.'" Konop v. Rosen, 425 N.J. Super. 391, 403 (App.
Div. 2012) (quoting Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 219 (App.
Div. 1996)).
Based on our review of the competent proofs in the record, we are satisfied
that plaintiff presented sufficient undisputed evidence of the credit card debt s
warranting the entry of summary judgment in its favor as a matter of law.
Madison is an authorized representative of the assignor's subsidiary and certifies
that he has personal knowledge of the facts after having reviewed the account
records maintained by the initiating entity in the normal course of business. He
attested that he was familiar with and trained in the manner that Midland creates
and maintains its business records in the regular course of business and that the
attached documents were true and correct copies of the originals. He also
testified that the records were unaltered and clearly reflected the amount owed
by defendant at the charge off date. We further note that defendant's credit
report, an objective document, corroborates the underlying debt and Madison's
testimony. Accordingly, we find that the affidavit was properly considered as a
business record pursuant to N.J.R.E. 803(c)(6).
Defendant also argues that plaintiff was strictly prohibited from initiating
and adjudication debt collection matters subject to an executive order passed
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during the COVID-19 pandemic. In furtherance of this argument, defendant
relies on a contractual provision between Synchrony Bank and plaintiff that
prevents the latter from commencing collection actions in a disaster area. The
provision provides in pertinent part:
Without limiting the foregoing, [plaintiff] further
represents and warrants that it shall: . . . (x) upon
declaration by [the Federal Emergency Management
Agency] or any appropriate local, state or federal
agency that a location is a disaster area, [plaintiff]
agrees to temporarily suspend its collection activities
within said area until such time as is reasonable and
practicable.
Defendant's argument is baseless. Defendant failed to present evidence
that an executive order prohibited the commencement and adjudication of d ebt
collection matters during a state emergency related to the COVID-19 pandemic.
Nor has defendant established that there is a contractual bar to plaintiff filing a
debt collection suit in a disaster area. Also, the evidence which she relies on for
this argument is a contractual provision that was not presented to the court. Even
if such a contractual provision applied here, defendant lacks standing to allege
a breach of that provision. Where "there is no intent to recognize the third
party's right to contract performance, 'then the third person is only an incidental
beneficiary, having no contractual standing.'" Ross v. Lowitz, 222 N.J. 494, 513
(2015) (quoting Broadway Maint. Corp. v. Rutgers, State Univ., 90 N.J. 253,
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259 (1982)). There is no indication in this record that the contracting parties
intended defendant to benefit from the contract. Rather defendant is merely an
incidental beneficiary of the contract between Synchrony Bank and plaintiff and,
therefore, has no standing to file suit against plaintiff. Based on the record
before us, we perceive no basis for finding error.
Defendant's arguments that the court abused its discretion in denying her
motions is not supported by the record. These arguments are without sufficient
merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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