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COA overturns judgment in favor of credit card debt collector

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The Indiana Court of Appeals has reversed judgment in favor of a credit card debt collector after determining that the collector failed to establish that it owned the account it was trying to collect on.

In Kevin T. Williams v. Unifund CCR, LLC, 71A04-1604-CC-901, Kevin Williams opened a credit card account with Citibank and accumulated a monthly credit debt in the aggregate amount of $10,402.90 over the course of seven years. In March 2013, Williams’ account was sold to Pilot Receivables Management and assigned to Unifund CCR Partners.

In January 2014, Unifund filed a complaint against Williams alleging breach of contract, account stated, promissory estoppel and unjust enrichment. Williams, in turn, moved to dismiss and strike Unifund’s exhibits, arguing that the affidavit of debt, account statement and bill of sale and assignment were based on hearsay.

Unifund then moved for summary judgment, but the St. Joseph Circuit Court denied that motion and instead ordered that any additional exhibits offered at trial should be exchanged between the parties by Aug. 17, 2015. When the court conducted a bench trial on Aug. 31, Unifund offered two exhibits into evidence that contained documents that were not previously provided to Williams. The trial court admitted the evidence over Williams’ objection and found in favor of Unifund, awarding it $10,402.90.

Williams then moved to correct error, but the court denied that motion, prompting his appeal. The Indiana Court of Appeals found in Williams’ favor Friday, writing that the admission of both exhibits was an abuse of discretion.

In regard to Exhibit 1, which contained 17 credit card statements from Williams’ account with Citibank, Judge Patricia Riley noted that the statements failed to meet all of the exceptions to Indiana hearsay rules. Specifically, Nathan Duvelius, an authorized representative and custodian of records for Unifund, conceded that he was not familiar with Citibank’s bookkeeping methods. Thus, Riley wrote, Duvelius did not have personal knowledge of Citibank’s policies, so he could not qualify as a witness under the hearsay exception rules.

Exhibit 2, which was also admitted through Duvelius’ testimony, also did not meet hearsay exceptions, Riley wrote. The first document, a bill of sale and assignment, was signed by Patricia Hall, a financial account manager at Citibank. Thus, because Duvelius was unfamiliar with Citibank’s business practices, his testimony could not qualify, Riley wrote. Similarly, a 30-page spreadsheet generated by Citibank also could not qualify for a hearsay exception because Duvelius conceded that he did not know whether the spreadsheet was kept as part of Citibank’s regular business practices.

The second exhibit also contained two assignments between Pilot and Unifund that “fail to specify the transfer of rights in Williams’ account.” The assignments refer to “rights in the Receivables,” but the “Receivables” were likely more closely defined in a Servicing Agreement that was not admitted at trial, Riley wrote. Thus, the assignments fail to adequately establish that Unifund was assigned or had ownership of Williams’ account.

Finally, Riley wrote that the last evidence in Exhibit 2, an affidavit, is admissible under Indiana Evidence Rule 803(6), but did not satisfy Unifund’s burden of proof because Unifund failed to present admissible evidence proving that it owns Williams’ account.

Thus, the unanimous appellate panel reversed the trial court’s judgment in favor of Unifund.

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  1. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  2. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  3. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  4. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  5. I presented my defense against discipline to the Virginia State Bar this morning and the 26-member Board of Discipline 100% rejected what Indiana has done to me, including what Ahler did. Discipline DISMISSED.

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