LVNV Funding, LLC as Assignee of Sears Gold Mastercard v. Kevin Mastaw ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 14, 2011 Session
LVNV FUNDING, LLC AS ASSIGNEE OF SEARS GOLD
MASTERCARD
v.
KEVIN MASTAW
Appeal from the Circuit Court of Davidson County
No. 10C-2671 Joe P. Binkley, Jr., Judge
No. M2011-00990-COA-R3-CV - Filed April 30, 2012
This appeal concerns the collection of credit card debt. The plaintiff, a subsequent purchaser
of the debt, filed this collection action against the appellant debtor. On appeal, the appellant
debtor argues, inter alia, that the trial court erred in admitting into evidence various
documents from a previous owner of the debt, pursuant to the hearsay exception for business
records under Tenn. R. Evid. Rule 803(6). We hold that two of the exhibits were not
appropriately admitted into evidence under the business records exception. Without those
exhibits, we find that the evidence preponderates against the trial court’s judgment in favor
of the creditor, and reverse.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed
and Remanded
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.
James E. Kirby, Antioch, Tennessee for Defendant/Appellant Kevin Mastaw
Byron C. Hamlett, Nashville, Tennessee for Plaintiff/Appellee LVNV Funding, LLC as
assignee of Sears Gold MasterCard
OPINION
F ACTS AND P ROCEEDINGS B ELOW
In December 2009, Plaintiff/Appellee LVNV Funding, LLC, (“LVNV”) as assignee of Sears
Gold MasterCard, filed a civil warrant in the General Sessions Court of Davidson County
against Kevin J. Mastaw (“Mastaw”). The warrant asserted that Mastaw owed $15,101.23
plus pre- and post-judgment interest on his MasterCard credit card. The General Sessions
Court conducted a trial in June 2010 and a judgment in favor of LVNV was entered in the
amount of $16,406,77.
Mastaw filed an appeal to the Circuit Court of Davidson County (“trial court”). The de novo
trial was held on March 21,2011.1 The record does not contain a transcript of the trial, but
the trial court entered an approved Statement of the Evidence. Our recitation of the facts is
taken from this Statement.2
At the outset of the trial, Mastaw made an oral motion to bar LVNV from proceeding with
the debt collection against him, arguing that LVNV is a purchaser of accounts and engaged
in debt collection as defined under Section 62-20-101, et seq. As such, Mastaw contended,
LVNV was required to be licensed as a collection agency before attempting to collect the
alleged debt.3 The trial court reserved its ruling on the motion until it heard the evidence
regarding this issue.
LVNV’s first witness was Kimberly W. Parks (“Parks”), an employee of Resurgent Capital
Services (“Resurgent”) located in Nashville, Tennessee. Parks was the custodian of records
for Resurgent. She testified that Resurgent is the attorney in fact for LVNV, and that
Sherman Financial Group (“Sherman”), is the parent corporation for both Resurgent and
1
Tenn. Code Ann. § 27-5-108(c) (2000).
2
We note that Mastaw’s appellate argument on one issue is recited from his proposed statement of evidence,
which was rejected by the trial court, instead of the statement of the evidence that was approved by the trial
judge. Unless an issue is raised on appeal regarding the statement of the evidence, we will not consider a
statement of the evidence proffered by a party and expressly rejected by the trial judge.
3
Mastaw made another oral pretrial motion to bar LVNV from proceeding because it did not have a
certificate of authority to transact business in the state of Tennessee pursuant to Tennessee Code Annotated
§ 48-25-102(a). Ultimately, the trial court held that Mastaw did not show that LVNV is a foreign
corporation, and even if he had, the trial court held, the collection of debts does not constitute “transacting
business” under Section 48-25-101, and thus LVNV was not required to obtain a certificate of authority.
This issue is not raised on appeal, so we do not address it.
-2-
LVNV. Parks said that Sherman purchased a number of Sears Gold MasterCard debt
accounts from Citibank of South Dakota (“Citibank”).
Through Parks’ testimony, LVNV sought to introduce into evidence six exhibits regarding
Mastaw’s alleged debt. Mastaw objected to all on the basis that the records contained
hearsay. The six exhibits are:
Exhibit 1: “Limited Power of Attorney” between LVNV and Resurgent, dated
June 3, 2009.
Exhibit 2: “Assignment and Assumption Agreement” between Citibank and
Sherman dated July 2, 2008, and is signed by David L. Zimbeck, vice president
and general counsel of Citibank.4
Exhibit 3: “Sale and Assignment” between Sherman and LVNV, dated July 31,
2008, signed twice by Les Gutierrez as authorized representative of both
Sherman and LVNV.5
Exhibit 4: “Plaintiff’s Affidavit of Indebtedness and Ownership of Account,”
signed by Tobie Griffin6 as authorized representative of LVNV, dated October
21, 2009. Griffin’s affidavit states that she has knowledge of LVNV’s
creation and maintenance of its normal business records, and that the business
records on Mastaw’s account include a “compilation of information provided
upon acquisition and obtained since acquisition,” which indicate that Mastaw’s
account is a result of Sears’ extension of credit to Mastaw on August 1, 1985.
The affidavit then states that the account was owned by Citibank and then later
sold to LVNV’s assignor on July 1, 2008. The affidavit asserts that the
ownership rights were assigned to LVNV, including the right “to collect the
purchased balance owing of $15,101.23 plus any additional accrued interest.”
4
Exhibit 2 references an agreement between Citibank and Sherman dated January 18, 2008 which describes
the accounts being transferred from Citibank to Sherman in Section 1.2 of that agreement. This agreement
is not included in the record; however, Exhibit 2 states that Sherman transfers to LVNV and LVNV’s
successors and assigns “the Accounts described in Section 1.2 of the Agreement.”
5
Exhibit 3 references a separate agreement dated April 29, 2005, setting forth the terms of the sale; it
identifies the receivable assets as delivered to LVNV with this document. Exhibit 3 also attaches a document
entitled “Receivable File- Portfolio IDs,” dated July 31, 2008, highlighting portfolio number 11474.
6
The record fails to specify the gender of Tobie Griffin. For the purpose of this appeal, we will assume
Griffin is female.
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Based on the business records maintained on Mastaw’s account, Griffin’s
affidavit claims the balance of $15,101.23 is “duly owed” by Mastaw.
Exhibit 5: Affidavit of Tobie Griffin as authorized representative of Sherman,
dated January 21, 2010, stating that LVNV now owns Mastaw’s account, and
that the account was acquired from Sherman. The affidavit states that all of
Sherman’s interest in the Account vested in LVNV when it was acquired from
Sherman.
Exhibit 6: Compilation of Mastaw’s credit card Statements.7
As indicated in the proffered exhibits, Parks explained that LVNV is an asset holding
company, holding the Sears Gold MasterCard accounts purchased by Sherman, and
Resurgent is the assignee of LVNV. Parks said that Citibank originally serviced Mastaw’s
Sears Gold MasterCard account, until Sherman purchased it. As of July 2, 2008, Mastaw’s
Sears Gold MasterCard account had an indebtedness of $15,101.23.
On cross-examination, Parks conceded that she had no knowledge of Citibank’s records, how
the Sears Gold MasterCard accounts were created, or what charges Mastaw made. Parks
explained that LVNV purchased both the contract and the debt, but said that she did not have
a copy of the original contract between Sears Gold MasterCard and Mastaw creating the
account, and did not know whether Sears had accurately calculated Mastaw’s indebtedness
in accordance with the terms of that contract. She said that Citibank originally purchased the
Sears Gold MasterCard accounts before they were transferred to Sherman. Finally, Parks
testified that her employer Resurgent was licensed to collect debts in Tennessee and recited
the license number. She did not have a copy of Resurgent’s license.
The trial court held that Parks was “the custodian or other qualified witness” as required
under Rule 803(6) of the Tennessee Rules of Evidence, commonly referred to as the
“business records exception,” and that all six exhibits were records of regularly conducted
business activity. The trial court concluded that the source of information contained in all
six exhibits and the method and circumstances of preparation showed that all six records
were trustworthy. All six exhibits were admitted pursuant to Rule 803(6).
The trial court denied Mastaw’s oral pretrial motion to bar LVNV from going forward
because it determined that Mastaw failed to prove LVNV lacked the required license. The
trial court credited Parks’ testimony that Resurgent, the attorney in fact for LVNV, had a
7
Exhibit 6 indicates that payments of approximately $500 were made on the account in July, September,
October, and November 2007, with no payments after November 2007.
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Tennessee license to operate as a collection agency, and the trial court found this sufficient
for LVNV to proceed.
LVNV then called Mastaw to testify. Mastaw did not recall his Sears Gold MasterCard
account number, but acknowledged that the address which appeared on the Sears Gold
MasterCard statements was his former address. He admitted that he had a Sears Gold
MasterCard account, but said that he had not used it since 2001 and could not recall when
he last made a payment on the account or whether the account was paid off. He testified that
he believed the account was “closed out” in 2005. Mastaw did not recall owing $15,101.23
on the account, and did not know whether he owed $15,101.23 to Sears. Mastaw
acknowledged that he had reviewed Exhibit 6, the compilation of his MasterCard statements.
Mastaw’s testimony concluded the evidence submitted by LVNV. Mastaw did not put on
any evidence.
At the conclusion of the testimony, the trial court noted that, after reviewing the compilation
of his credit card statements in Exhibit 6, Mastaw failed to testify either that the document
was not his Sears Gold MasterCard account or that he did not owe the $15,101.23 balance
on the Exhibit. In light of this, the trial court found that Exhibit 6 was Mastaw’s Sears Gold
MasterCard account, and the balance owed on the card was $15,101.23.
On March 31, 2011, the trial court entered an order finding that Mastaw was indebted to
LVNV in the amount of $15,101.23, plus the costs and post-judgment interest at the statutory
rate of 10% per annum. Mastaw now appeals.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, Mastaw argues that the trial court erred in admitting Exhibits 2-6 into evidence,
because (1) Parks is not a custodian or other qualified witness as required by Rule 803(6) of
the Tennessee Rules of Evidence (“Rule 803(6)”), and (2) Exhibits 2-6 were not records of
regularly conducted activity as required under Rule 803(6).8 Mastaw also argues that the trial
court erred in finding that LVNV is a collection service as defined by Tennessee Annotated
Code § 62-20-102(3), and that the requirement of a debt collection license was met because
Resurgent, the attorney in fact for LVNV, is licensed by the State of Tennessee as a debt
collector.
8
Mastaw concedes that Exhibit #1 “Limited Power of Attorney” executed between LVNV and Resurgent was
properly introduced into evidence.
-5-
In a non-jury case such as this one, we review the trial court’s factual findings de novo with
a presumption of correctness, unless the evidence preponderates to the contrary. Tenn. R.
App. P. 13(d) (2011); Morrison v. Allen, 338 S.W.3d 417, 425 (Tenn. 2011). The trial
court’s conclusions of law are accorded no such presumption of correctness. Colonial
Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008).
“The determination of whether a hearsay statement is admissible through an exception to the
hearsay rule is left to the sound discretion of the trial judge.” Arias v. Duro Standard Prods.
Co., 303 S.W.3d 256, 262 (Tenn. 2010). An appellate court does not interfere with a trial
court’s decision to admit or exclude evidence absent an abuse of discretion. State v.
Franklin, 308 S.W.3d 799, 809 (Tenn. 2010); State v. Lewis, 235 S.W.3d, 136, 141 (Tenn.
2007). A trial court abuses its discretion “when it ‘applies an incorrect legal standard, or
reaches a decision which is against logic or reasoning that causes an injustice to the party
complaining.’ ” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)); see also Mercer v. Vanderbilt Univ., Inc., 134
S.W.3d 121, 131 (Tenn. 2004).
A NALYSIS
Admissibility of Documents
We consider first Mastaw’s argument that the trial court erred in admitting into evidence
Exhibits 2-6 on his alleged indebtedness. Mastaw contends that the trial court erred in
finding that Parks was a custodian of the records at issue or was otherwise qualified under
Tenn. R. Evid. 803(6). Mastaw also argued that Exhibits 2-6 all contained hearsay not
subject to the business records exception in Rule 803(6). We find that the appeal may be
determined based on the admissibility of the documents. We focus on the admissibility of
Exhibits 4 and 5, both affidavits by Tobie Griffin.
Mastaw argues that both documents contain inadmissible hearsay. He contends that Exhibit
4 “was prepared by a business entity removed from the witness [Parks],” and that Exhibit 5
“was prepared by a business entity two entities removed from the witness [Parks] . . . .”
Mastaw insists that both documents were created by a business entity other than Resurgent,
Parks’ employer, and are not admissible under the business records exception to the hearsay
rule. Tenn. R. Evid. 803(6).
In response, LVNV argues that a debt purchaser may submit into evidence documents
prepared by predecessor entities if the debt purchaser integrated the documents into its own
record, citing Air Land Forwarders, Inc. v. United States, 172 F.3d 1338 (Fed. Cir. 1999).
LVNV stresses that the purpose of Rule 803(6) is to facilitate the use of business records in
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litigation and eliminate the need to call numerous witnesses to testify about the preparation
of the record, citing Campbell v. Union Planters Bank, No. E1999-01910-COA-R3-CV,
2000 WL 1100219, at *2; 2000 Tenn. App. LEXIS 510, at *5 (Tenn. Ct. App. Aug. 2, 2000).
It contends that the “key question is whether there is any indicia of lack of trustworthiness,”
and contends without citing to authority that “the burden shifted to [Mastaw] to present
testimony or evidence that would obviate the trustworthiness of . . . the exhibits.” LVNV
addresses all of the exhibits in the aggregate, without addressing the particulars of any single
exhibit, and maintains that the trial court did not err in admitting all of them into evidence
under Rule 803(6).
In an action to collect a debt, the plaintiff creditor bears the burden of proving the existence
of the debt and that the debtor is indebted to the creditor in a certain amount. Bellsouth
Adver. & Publ. Corp. v. Wilson, No. M2006-00930-COA-R3-CV, 2007 WL 2200170, at *5;
2007 Tenn. App. LEXIS 496, at *12 (Tenn. Ct. App. July 30, 2007). In this case, because
LVNV is not the original creditor as to Mastaw’s Sears Gold MasterCard, LVNV must also
prove by a preponderance of the evidence that it is the owner of Mastaw’s debt. See Cach,
LLC v. Askew, 358 S.W.3d 58, 62 (Mo. 2012) (citing Midwestern Health Mgmt., Inc. v.
Walker, 208 S.W.3d 295, 298 (Mo. App. 2006)) (requiring “every link in the chain between
the party to which the debt was originally owed and the party trying to collect the debt must
be proven by competent evidence in order to demonstrate standing.”) See also Cuda &
Assoc., LLC v. Lumpkin, No. NNHCV9095031901, 2011 WL 6413674, at *1, 2; 2011 Conn.
Super. LEXIS 3025, at *2, 6-7 (Conn. Super. Ct. Nov. 29, 2011) (“the plaintiff must
demonstrate . . . that it is the valid assignee of an existing debt” and that the record was made
in the regular course of business). Therefore, we look at whether LVNV met its burden of
proving that Mastaw is in fact indebted to LVNV, and the amount of such debt.
The Statement of the Evidence indicates that LVNV’s primary witness, Parks, is employed
by LVNV’s attorney in fact, Resurgent, and testified as the custodian of records for
Resurgent. As such, Parks testified from the exhibits about the various transactions that
resulted in LVNV purportedly owning Mastaw’s debt, as well as Mastaw’s credit card
charges, payments, and the amount of the alleged remaining debt. Parks’ testimony on direct
and on cross-examination indicates no personal knowledge of the matters contained in the
disputed exhibits, but rather that she was relating in her testimony the information in the
exhibits. Consequently, we focus on the admissibility of the exhibits on which Parks relied.
It is undisputed on appeal that the exhibits at issue in this appeal all contained hearsay. See
Tenn. R. Evid. 801(c) (2011). All were admitted into evidence under the hearsay exception
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set forth in Rule 803(6), commonly referred to as “the business records exception.” 9 Tenn.
R. Evid. 803(6) (2011); Simpkins v. Simpkins, No. M2010-02550-COA-R3-CV, 2012 WL
628011, at *4; 2012 Tenn. App. LEXIS 131, at *11-12 (Tenn. Ct. App. Feb. 27, 2012). Rule
803(6), entitled “Records of Regularly Conducted Activity,” states as follows:
The following are not excluded by the hearsay rule:
***
(6) A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses made at or near the time by or from
information transmitted by a person with knowledge and a business duty to
record or transmit if kept in the course of a regularly conducted business
activity and if it was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown by the
testimony of the custodian or other qualified witness or by certification that
complies with Rule 902(11) or a statute permitting certification, unless the
source of information or the method or circumstances of preparation indicate
lack of trustworthiness. The term “business” as used in this paragraph includes
business, institution, profession, occupation, and calling of every kind, whether
or not conducted for profit.
9
Under Rule 902(11) of the Tennessee Rules of Evidence, a business record may also be authenticated
through an accompanying affidavit, with the following requirements:
The original or a duplicate of a domestic record of regularly conducted activity that would
be admissible under Rule 803(6) if accompanied by an affidavit of its custodian or other
qualified person certifying that the record:
(A) was made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of and a business duty to record or
transmit those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written
notice of that intention to all adverse parties, and must make the record and declaration
available for inspection sufficiently in advance of their offer into evidence to provide an
adverse party with a fair opportunity to challenge them.
Tenn. R. Evid. 902 (11) (2011). In this case, the trial court relied only on Rule 803(6), with Parks as the
custodian, so we do not address Rule 902(11).
-8-
Tenn. R. Evid. 803(6) (2011). The rationale underlying the business records exception is that
“records regularly kept in the normal course of business are inherently trustworthy and
reliable.” Arias v. Duro Standard Prods. Co., 303 S.W.3d 256, 262 (Tenn. 2010) (quoting
Alexander v. Inman, 903 S.W.2d 686, 700 (Tenn. Ct. App. 1995). See also Neil P. Cohen,
Sarah Y. Sheppeard, & Donald F. Paine, Tennessee Law of Evidence § 8.11[2] (4th ed. 2000)
("Tennessee Law of Evidence"). The exception is intended “to facilitate the use of business
records by eliminating the expense and inconvenience of calling numerous witnesses
involved in the preparation and maintenance of the records” and “unduly disrupting the
business’s activities.” Alexander, 903 S.W.2d at 700; Tennessee Law of Evidence § 8.11[11].
As noted above, both Exhibit 4 and Exhibit 5 are affidavits by Tobie Griffin. In Exhibit 4,
Griffin describes herself as an “authorized representative for LVNV.” She does not
otherwise describe her relationship with LVNV. The affidavit refers generally to LVNV’s
“normal business records, including computer records of its accounts receivables.” However,
the affidavit does not identify the particular records to which it refers, and none are attached
to it. Griffin’s affidavit states that the information in the unspecified records “was regularly
and contemporaneously maintained during the course of [LVNV’s] business.” 10 It states that
the unspecified “records provided to [LVNV] have been represented to include information
provided by the original creditor,” such as the debtor’s identity and the identity of the original
creditor. The affidavit does not state who made such a representation.
After listing an account number, Griffin’s affidavit asserts that the number is for Mastaw’s
account with Sears, based again on the unidentified records. It notes that “[s]aid business
records” indicate that Mastaw’s account later came to be owned by Citibank, and that
Citibank later assigned a numbered “Portfolio” to LVNV’s “assignor,” again unidentified,
and that the “Portfolio” included Mastaw’s account. Griffin’s affidavit then asserts that the
ownership rights were assigned to LVNV, and states a balance of $15,101.23, plus interest.
The affidavit concludes by asserting that this amount “is justly and duly owed” by Mastaw
to LVNV.
In Exhibit 5, Griffin represents herself to be an “[a]uthorized [r]epresentative of [Sherman].”
She does not explain her relationship with Sherman, or how she came to be an “authorized
representative” of both LVNV and Sherman. In this affidavit, Griffin lists an account
number that is purportedly Mastaw’s account, says that it is owned by LVNV, and explains
that LVNV acquired the account from Sherman.
10
Despite this language, there is no indication in the record that Griffin’s affidavit was submitted pursuant
to Tenn. R. Evid. 902(11), or that the trial court considered it as such.
-9-
In Arias v. Duro Standard Products, a worker’s compensation case, the Tennessee Supreme
Court considered whether a physician’s report was admissible under the business records
exception. Arias, 303 S.W.3d at 262. The physician who made the report was not the
claimant’s treating physician. Id. at 263. The report was the result of the physician’s
independent medical examination of the claimant, in which the physician opined as to the
cause of the claimant’s condition and assigned a percentage of permanent partial impairment.
Id. at 259.
The Arias Court held that the trial court had erred by admitting the physician’s report into
evidence under Rule 803(6). The Court observed: “An extraordinary report prepared for an
irregular purpose, particularly when prepared with litigation in mind, may not be made in the
regular course of business and may be inadmissible as a business record under Rule 803(6).”
Id. at 263 (quoting Neil P. Cohen, et al., Tennessee Law of Evidence § 8.11[6] at p. 8-113
(5th ed. 2005)). Noting that the physician’s opinion in the report “was sought solely for the
purpose of establishing causation and impairment in this workers’ compensation litigation,”
the Court held that this fact undermined the trustworthiness usually associated with records
admitted under Rule 803(6). Id. It held that the report was improperly admitted into
evidence.
This interpretation of Rule 803(6) is not new. Documents prepared specifically for the
subject litigation are “properly excluded because of motivational concerns arising from the
fact that they were generated for litigation purposes,” as opposed to records generated for
business purposes. 2 Kenneth S. Broun, McCormick on Evidence § 288 (6th ed. 2009). The
United States Supreme Court addressed this issue in the seminal case of Palmer v. Hoffman,
318 U.S. 109; 63 S. Ct. 477 (1943), involving a railroad crossing accident. The record at
issue in Palmer was a written statement by the engineer of the train, who died prior to trial.
The railroad sought to introduce the engineer’s statement into evidence under the business
records exception, arguing that the railroad routinely took such statements after accidents.
Palmer, 318 U.S. at 111.
The Court in Palmer recognized the need for the business records exception, lest the burden
of collecting a debt be made unduly onerous.11 Id. at 112. It found, however, that the
11
The Palmer Court quoted Judge Learned Hand:
The routine of modern affairs, mercantile, financial and industrial, is conducted with so
extreme a division of labor that the transactions cannot be proved at first hand without the
concurrence of persons, each of whom can contribute no more than a slight part, and that
part not dependent on his memory of the event. Records, and records alone, are their
adequate repository, and are in practice accepted as accurate upon the faith of the routine
(continued...)
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engineer’s statement “[fell] into quite a different category” because it was “not a record made
for the systematic conduct of the business as a business.” Id. at 113. The Court explained:
[I]t is manifest that in this case those reports are not for the systematic conduct
of the enterprise as a railroad business. Unlike payrolls, accounts receivable,
accounts payable, bills of lading and the like[,] these reports are calculated for
use essentially in the court, not in the business. Their primary utility is in
litigating, not in railroading.
Id. at 114. Therefore, the engineer’s statement was deemed inadmissible under the business
records exception.
In the case at bar, the affidavits executed by Griffin were clearly prepared specifically for the
instant litigation, to trace the assignments of Mastaw’s debt, establish LVNV’s ownership
of the debt and the amount due from Mastaw. They do not incorporate by reference or
otherwise summarize or interpret documents that are prepared in the normal course of
regularly conducted business activity. We must conclude that Exhibits 4 and 5 do not
properly fit within Rule 803(6), the business records exception to the hearsay rule, and that
the trial court erred in admitting them into evidence pursuant to this exception.
Having concluded that Exhibits 4 and 5 were erroneously admitted into evidence under Rule
803(6), we find the remaining evidence in the record insufficient to establish that Mastaw is
11
(...continued)
itself . . . . Unless they can be used in court without the task of calling those who at all
stages had a part in the transactions recorded, nobody need ever pay a debt, if only his
creditor does a large enough business.
Palmer, 318 U.S. at 112 n.2 (quoting Mass. Bonding & Ins. Co. v. Norwich Pharmacal Co., 18 F.2d 934,
937 (2d Cir. 1927).
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indebted to LVNV and the amount of that debt.12 This holding pretermits all other issues
raised on appeal.13
C ONCLUSION
The decision of the trial court is reversed. Costs on appeal are assessed against Appellee
LVNV Funding, LLC, for which execution may issue if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
12
In Fusner v. Coop Contruct. Co., LLC, 211 S.W.3d 686 (Tenn. 2007), the Supreme Court held that a
compilation of business records, compiled for specific litigation, may be admissible as a “summary” of
“voluminous writings” under Tenn. R. Evid. 1006, “so long as the data included in a compilation otherwise
satisfies the business records exception . . . .” Id. at 693. We note that Exhibit 6 in this case, is a compilation
of Mastaw’s MasterCard statements. However, even if Exhibit 6 is admissible under the principle in Fusner,
it is not sufficient in and of itself because it does not “link up” LVNV with the debt nor does it show
LVNV’s ownership of the debt. The assignment agreements in Exhibits 2 and 3 show the trail of assignment
of debts to LVNV, but do not sufficiently identify Mastaw’s debt as among those assigned.
13
Having determined that this appeal should be decided on the inadmissability of Exhibits 4 and 5, this Court
expressly declines to determine whether the trial court erred in finding Parks was a qualified witness to
authenticate the inherited documents at issue. However, we note that Tennessee courts have broadly defined
the term “qualified witness” as a witness with “personal knowledge of the business’s record-keeping methods
and can explain same to the court” and is not “required to have personal knowledge of the facts recorded,
nor to have been personally involved in preparing the documents or even know who did.” See Beal Bank
S.S.B. v. RBM Co., No. E2001-00520-COA-R3-CV, 2002 WL 43604, at *2; 2002 Tenn. App. LEXIS 21,
at * 5-6 (Tenn. Ct. App. Jan. 11, 2002) (citing Alexander, 903 S.W.2d at 700).
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