Joseph T. Hunt v. Federated Financial Corporation of America.

85 So. 3d 424, 2011 Ala. Civ. App. LEXIS 183, 2011 WL 2937407
CourtCourt of Civil Appeals of Alabama
DecidedJuly 22, 2011
Docket2090973
StatusPublished

This text of 85 So. 3d 424 (Joseph T. Hunt v. Federated Financial Corporation of America.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joseph T. Hunt v. Federated Financial Corporation of America., 85 So. 3d 424, 2011 Ala. Civ. App. LEXIS 183, 2011 WL 2937407 (Ala. Ct. App. 2011).

Opinion

MOORE, Judge.

Joseph T. Hunt appeals from a judgment of the Jefferson Circuit Court (“the trial court”) in favor of Federated Financial Corporation of America (“FFCA”). We affirm the trial court’s judgment.

Procedural History

On June 28, 2009, FFCA, which had allegedly been assigned a credit-card debt owed by Hunt, filed a complaint alleging that Hunt owed $19,796.57 plus accrued interest on that credit-card account and seeking a judgment in that amount against Hunt. Hunt filed an answer to the complaint on August 14, 2009. Following a trial on April 7, 2010, the trial court entered a judgment on April 9, 2010, in favor of FFCA and against Hunt in the amount of $34,113.24, including court costs. Hunt filed a motion to alter, amend, or vacate the trial court’s judgment on May 10, 2010;1 the trial court denied that motion on June 2, 2010. On July 13, 2010, Hunt filed his notice of appeal to this court.

Facts

Hunt testified that he filled out an application for a MasterCard Executive business credit card from Advanta Bank Business Corporation (“Advanta”) and that he was approved for the card.2 Hunt stated that he used the credit card, that he received monthly statements on the credit card, and that he made payments toward the amounts owed on the credit card. He testified that there came a time when he was unable to make the monthly payments. He testified that he paid $571 on April 25, 2006, but he was not sure if that was the last payment he was able to make on the account.

Hunt did not dispute the balance of a credit-card statement showing that the amount due thereon was $19,796.57. He testified that he thought that the debt had been forgiven because he was unable to pay it. He testified that he had received a document stating that the debt had been forgiven. Specifically, Hunt stated that he thought he had received a notice in 2006 or 2007 that confirmed that the debt had been written off and that that was his understanding, although he also testified [426]*426that he did not have that documentation. He testified that he never received anything more regarding the credit card from Advanta or from anyone else after that time. He testified that he was not familiar with FFCA.

Justin Owen, a manager in the collections department for FFCA, testified that he was personally familiar with the books and records of FFCA with respect to the debt owed by Hunt. He testified that FFCA purchased Hunt’s debt from Advan-ta. FFCA presented a copy of a document entitled “Contractual Forward Flow Bill of Sale and Assignment,” which was signed by the vice president and treasurer of Advanta and dated February 14, 2007; that document evidenced a transfer of debts from Advanta to FFCA. Owen stated that FFCA had purchased a portfolio of debts from Advanta on December 15, 2006, and that the “Contractual Forward Flow Bill of Sale and Assignment” evidenced that FFCA now owned those debts. Owen also testified that Hunt’s account had been assigned to FFCA on February 14, 2007, in accordance with the transfer from Ad-vanta. FFCA presented an account-sheet history indicating that the balance of Hunt’s debt was $19,796.57. Owen testified that he had reviewed Hunt’s statements in FFCA’s records and that those statements revealed a balance of $19,796.57. He testified that interest had accrued on that balance and that the total due at the time of the trial was $30,919.20.

Discussion

Hunt asserts on appeal that the trial court erred in finding FFCA’s evidence of assignment sufficient to establish standing to collect on Hunt’s alleged debt. Specifically, Hunt asserts that FFCA’s evidence of assignment was insufficient because, he says, that evidence did not identify the purchase of Hunt’s individual account from Advanta.

“Because the circuit court received evidence ore tenus, our review is governed by the following principles:
“ ““ “[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.” ’ ” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). “ ‘The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’ ” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). “Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.” Waltman v. Rowell, 913 So.2d at 1086.’
“Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).”

Bond v. Estate of Pylant, 63 So.3d 638, 643-44 (Ala.Civ.App.2010).

In the present case, the burden was on FFCA to prove that Hunt’s account had been assigned to FFCA. See Auerbach v. Pritchett, 58 Ala. 451 (1877). Hunt cites MBNA America Bank, N.A. v. Nelson, 15 Misc.3d 1148(A), 841 N.Y.S.2d 826 (table) (N.Y.Civ.Ct.2007) (unpublished opinion), for the following proposition:

“It is the ‘assignee’s burden to prove the assignment’ and ‘an assignee must tender proof of assignment of a particular account or, if there were an oral assign[427]*427ment, evidence of consideration paid and delivery of the assignment.’ [Citibank (South Dakota), N.A. v. Martin, 11 Misc.3d 219, 227, 807 N.Y.S.2d 284 (N.Y.Civ.Ct.2005).] Such assignment must clearly establish that Respondent’s account was included in the assignment. A general assignment of accounts will not satisfy this standard and the full chain of valid assignments must be provided, beginning with the assignor where the debt originated and concluding with the Petitioner.”

In Nelson, Nelson entered into a contract with MBNA America Bank, N.A., for a revolving credit-card debt and used that credit line for purchases and/or cash advances; a dispute later arose regarding Nelson’s obligation to repay the debt generated under the credit-card account, and MBNA attempted to submit the dispute to arbitration. Id. The question whether Nelson’s debt had been assigned was not directly at issue in Nelson; however, we note that the court in Nelson indicated that an affidavit from someone with knowledge of the policies, procedures, and practices of MBNA would have been sufficient to prove that Nelson had received notice of the terms and conditions of the credit account that required the parties to arbitrate any disputes. Id. Applying that reasoning to the present case, the testimony of someone with knowledge of the policies, procedures, and practices of FFCA would be sufficient to prove the chain of assignment of Hunt’s debt.

FFCA presented as evidence the “Contractual Forward Flow Bill of Sale and Assignment,” which evidenced a transfer of debts from Advanta.

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Related

Water Works & Sanitary Sewer Bd. v. Parks
977 So. 2d 440 (Supreme Court of Alabama, 2007)
Nyankojo v. North Star Capital Acquisition
679 S.E.2d 57 (Court of Appeals of Georgia, 2009)
Philpot v. State
843 So. 2d 122 (Supreme Court of Alabama, 2002)
Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc.
985 So. 2d 924 (Supreme Court of Alabama, 2007)
Waltman v. Rowell
913 So. 2d 1083 (Supreme Court of Alabama, 2005)
Fuller v. Fuller
991 So. 2d 285 (Court of Civil Appeals of Alabama, 2008)
LORREN v. Agan
960 So. 2d 685 (Court of Civil Appeals of Alabama, 2006)
Fadalla v. Fadalla
929 So. 2d 429 (Supreme Court of Alabama, 2005)
In Re Kendall
380 B.R. 37 (N.D. Oklahoma, 2007)
Dennis v. Dobbs
474 So. 2d 77 (Supreme Court of Alabama, 1985)
Bond v. ESTATE OF PYLANT
63 So. 3d 638 (Court of Civil Appeals of Alabama, 2010)
Unifund CCR v. Ayhan
146 Wash. App. 1026 (Court of Appeals of Washington, 2008)
Citibank (South Dakota), N.A. v. Martin
11 Misc. 3d 219 (Civil Court of the City of New York, 2005)
Auerbach v. Pritchett
58 Ala. 451 (Supreme Court of Alabama, 1877)

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Bluebook (online)
85 So. 3d 424, 2011 Ala. Civ. App. LEXIS 183, 2011 WL 2937407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-t-hunt-v-federated-financial-corporation-of-america-alacivapp-2011.