NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 21-635
MIDLAND CREDIT MANAGEMENT, INC.
VERSUS
AFRICA L. ARCENEAUX
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20202657 HONORABLE THOMAS J. FREDERICK, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.
AFFIRMED. Michael L. Lancaster Adam R. Deniger Eaton Group Attorneys 309 North Blvd Baton Rouge, LA 70801 (225) 378-3159 COUNSEL FOR PLAINTIFF/APPELLEE: Midland Credit Management, Inc.
Africa L. Arceneaux In Proper Person 121 D. Arceneaux Rd. Scott, LA 70583 (337) 501-3337 EZELL, Judge.
Africa Arceneaux appeals a trial court judgment granting summary judgment
in favor of Midland Credit Management, Inc., finding that she owed money for
credit card debt in the amount of $2,337.17 together with 5.75% interest from date
of judgment. For the following reasons, we affirm the trial court judgment.
FACTS AND PROCEDURAL HISTORY
Ms. Arceneaux applied for and received a Bergdorf Goodman credit card
issued by Capital One, National Association. Ms. Arceneaux made several
payments and received some refunds for items returned. She eventually defaulted
on the account. On June 17, 2019, the account was sold to Midland Credit
Management, Inc. On May 27, 2020, Midland filed suit against Ms. Arceneaux
requesting the balance due of $2,337.17 together with 5.75% interest from date of
judgment.
On October 26, 2020, Midland filed a motion for summary judgment. At the
hearing, Ms. Arceneaux disputed the amount of the claim arguing that she had
returned items but not received credit for them. The motion for summary
judgment was denied.
Midland filed a second motion for summary judgment on July 19, 2021. A
hearing on the second motion was held on August 9, 2021. Summary judgment
was granted, and a judgment in favor of Midland and against Ms. Arceneaux was
signed on August 9, 2021, in the amount of $2,337.17 together with 5.75% interest
from the date of judgment. Ms. Arceneaux then filed the present appeal.
SUMMARY JUDGMENT
Summary judgment procedure is favored and “is designed to secure the just,
speedy, and inexpensive determination of every action . . . . and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). In reviewing the trial
court’s decision on a motion for summary judgment, this court applies a de novo
standard of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La.
1/28/14), 144 So.3d 876, cert. denied, 574 U.S. 869, 135 S.Ct. 197 (2014).
The burden of proof is on the mover unless the mover will not bear the
burden of proof at trial, in which case the mover is not required to negate all
essential elements of the adverse party’s claim, but only to point out to the court
the absence of factual support for one or more of the elements necessary to the
adverse party’s claim. La.Code Civ.P. art. 966(D)(1). “The burden is on the
adverse party to produce factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not entitled to judgment as a
matter of law.” Id.
“After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).
A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.
Jackson, 144 So.3d at 882.
In Louisiana, suits to collect credit card debt are treated as suits on an open account. A prima facie case on an open account requires proof of the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Once a prima facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits.
2 Bank of America, N. A. v. Green, 52,044, p. 5 (La.App. 2 Cir. 5/23/18), 249 So.3d
219, 222 (citations omitted).
Ms. Arceneaux does not dispute that she was issued the Bergdorf Goodman
credit card by Capital One. Ms. Arceneaux’s assignments of error on appeal
concern the right of Midland to collect on the debt and the amount it claims it is
owed. She argues that she does not have a contract with Midland. She further
argues that the calculation of what is owed is not correct. Ms. Arceneaux contends
that the trial court erred in allowing Midland to admit its exhibits and not allowing
her to submit her exhibit. She argues that the affidavit Midland introduced in
support of the documentary evidence was not sufficient to establish the reliability
of the exhibits.
The affidavit of Taylor Madison declared that she is employed as a legal
specialist by Midland and has access to and personal knowledge of its pertinent
records. She stated that Midland was assigned the rights and title to Ms.
Arceneaux’s account with Capital One. Ms. Madison attested that she 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. The records submitted indicate that Ms.
Arceneaux owed a total of $2,337.17 as of March 18, 2020, subject to no credits.
As in Bank of America, N. A. v. Green, 249 So.3d 219, we find that the
affidavit of Ms. Madison meets the necessary requirements in that it was made on
personal knowledge and established that she was competent to testify about the
attached documents. La.Code Civ.P. art. 967.
Specifically attached to the affidavit was an additional affidavit by James R.
Lane, vice president of Capital One. He stated that he was personally aware of the
3 sale and assignment of a pool of charged-off accounts to Midland on June 11, 2019.
He stated that the records kept in the ordinary course of business of the individual
accounts were transferred to Midland and that he was not aware of any errors in the
accounts. The bill of sale from Capital One to Midland was also included in the
documents.
Also attached to Ms. Madison’s affidavit was a letter from Capital One dated
June 11, 2019, informing Ms. Arceneaux that Midland had acquired her credit card
debt in the amount of $2,337.17, in addition to Midland’s contact information.
Another letter sent by Midland to Ms. Arceneaux on July 17, 2019, was also
attached to the affidavit. This letter informed Ms. Arceneaux that Midland was
now the owner of her debt, totaling $2,337.17, and asked her to call by August 31,
2019, to resolve the matter. Credit card statements of Ms. Arceneaux’s account
showing purchases, payments, and credits from July 2018 to May 2019 were also
attached to the affidavit, indicating a final balance in the amount of $2,337.17.
We find that Midland established a prima facie case that it bought Ms.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 21-635
MIDLAND CREDIT MANAGEMENT, INC.
VERSUS
AFRICA L. ARCENEAUX
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20202657 HONORABLE THOMAS J. FREDERICK, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.
AFFIRMED. Michael L. Lancaster Adam R. Deniger Eaton Group Attorneys 309 North Blvd Baton Rouge, LA 70801 (225) 378-3159 COUNSEL FOR PLAINTIFF/APPELLEE: Midland Credit Management, Inc.
Africa L. Arceneaux In Proper Person 121 D. Arceneaux Rd. Scott, LA 70583 (337) 501-3337 EZELL, Judge.
Africa Arceneaux appeals a trial court judgment granting summary judgment
in favor of Midland Credit Management, Inc., finding that she owed money for
credit card debt in the amount of $2,337.17 together with 5.75% interest from date
of judgment. For the following reasons, we affirm the trial court judgment.
FACTS AND PROCEDURAL HISTORY
Ms. Arceneaux applied for and received a Bergdorf Goodman credit card
issued by Capital One, National Association. Ms. Arceneaux made several
payments and received some refunds for items returned. She eventually defaulted
on the account. On June 17, 2019, the account was sold to Midland Credit
Management, Inc. On May 27, 2020, Midland filed suit against Ms. Arceneaux
requesting the balance due of $2,337.17 together with 5.75% interest from date of
judgment.
On October 26, 2020, Midland filed a motion for summary judgment. At the
hearing, Ms. Arceneaux disputed the amount of the claim arguing that she had
returned items but not received credit for them. The motion for summary
judgment was denied.
Midland filed a second motion for summary judgment on July 19, 2021. A
hearing on the second motion was held on August 9, 2021. Summary judgment
was granted, and a judgment in favor of Midland and against Ms. Arceneaux was
signed on August 9, 2021, in the amount of $2,337.17 together with 5.75% interest
from the date of judgment. Ms. Arceneaux then filed the present appeal.
SUMMARY JUDGMENT
Summary judgment procedure is favored and “is designed to secure the just,
speedy, and inexpensive determination of every action . . . . and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). In reviewing the trial
court’s decision on a motion for summary judgment, this court applies a de novo
standard of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La.
1/28/14), 144 So.3d 876, cert. denied, 574 U.S. 869, 135 S.Ct. 197 (2014).
The burden of proof is on the mover unless the mover will not bear the
burden of proof at trial, in which case the mover is not required to negate all
essential elements of the adverse party’s claim, but only to point out to the court
the absence of factual support for one or more of the elements necessary to the
adverse party’s claim. La.Code Civ.P. art. 966(D)(1). “The burden is on the
adverse party to produce factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not entitled to judgment as a
matter of law.” Id.
“After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).
A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.
Jackson, 144 So.3d at 882.
In Louisiana, suits to collect credit card debt are treated as suits on an open account. A prima facie case on an open account requires proof of the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Once a prima facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits.
2 Bank of America, N. A. v. Green, 52,044, p. 5 (La.App. 2 Cir. 5/23/18), 249 So.3d
219, 222 (citations omitted).
Ms. Arceneaux does not dispute that she was issued the Bergdorf Goodman
credit card by Capital One. Ms. Arceneaux’s assignments of error on appeal
concern the right of Midland to collect on the debt and the amount it claims it is
owed. She argues that she does not have a contract with Midland. She further
argues that the calculation of what is owed is not correct. Ms. Arceneaux contends
that the trial court erred in allowing Midland to admit its exhibits and not allowing
her to submit her exhibit. She argues that the affidavit Midland introduced in
support of the documentary evidence was not sufficient to establish the reliability
of the exhibits.
The affidavit of Taylor Madison declared that she is employed as a legal
specialist by Midland and has access to and personal knowledge of its pertinent
records. She stated that Midland was assigned the rights and title to Ms.
Arceneaux’s account with Capital One. Ms. Madison attested that she 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. The records submitted indicate that Ms.
Arceneaux owed a total of $2,337.17 as of March 18, 2020, subject to no credits.
As in Bank of America, N. A. v. Green, 249 So.3d 219, we find that the
affidavit of Ms. Madison meets the necessary requirements in that it was made on
personal knowledge and established that she was competent to testify about the
attached documents. La.Code Civ.P. art. 967.
Specifically attached to the affidavit was an additional affidavit by James R.
Lane, vice president of Capital One. He stated that he was personally aware of the
3 sale and assignment of a pool of charged-off accounts to Midland on June 11, 2019.
He stated that the records kept in the ordinary course of business of the individual
accounts were transferred to Midland and that he was not aware of any errors in the
accounts. The bill of sale from Capital One to Midland was also included in the
documents.
Also attached to Ms. Madison’s affidavit was a letter from Capital One dated
June 11, 2019, informing Ms. Arceneaux that Midland had acquired her credit card
debt in the amount of $2,337.17, in addition to Midland’s contact information.
Another letter sent by Midland to Ms. Arceneaux on July 17, 2019, was also
attached to the affidavit. This letter informed Ms. Arceneaux that Midland was
now the owner of her debt, totaling $2,337.17, and asked her to call by August 31,
2019, to resolve the matter. Credit card statements of Ms. Arceneaux’s account
showing purchases, payments, and credits from July 2018 to May 2019 were also
attached to the affidavit, indicating a final balance in the amount of $2,337.17.
We find that Midland established a prima facie case that it bought Ms.
Arceneaux’s account from Capital One and was the successor in interest to Ms.
Arceneaux’s unpaid account. Midland further established that Ms. Arceneaux still
owed $2,337.17 at the time of purchase of the account.
Ms. Arceneaux claims that she returned items to the store and never received
credit for them. She argues that the trial court erred in not allowing her to
introduce into evidence a letter she allegedly wrote on November 8, 2018, that
purportedly established she returned some body cream that was purchased in the
amount of $85.00.
We first observe that there is no indication that this letter was properly
stamped or was even received by the store. Therefore, there is no presumption that
4 the letter was ever received. McWilliams v. Reith, 149 La. 298, 88 So. 913 (1921);
Otterman v. Ganus, 455 So.2d 1385 (La.1984). Even if we were to accept this
letter as evidence, we do not find that it establishes Ms. Arceneaux is entitled to a
credit of $85.00. We do see where Ms. Arceneaux received a credit for an item she
returned that was purchased at the same time as the body cream. However, there is
no indication that she followed up with the store about the returned items in the
next seven months, before her account was sold to Midland, establishing her right
to a credit. We find that Ms. Arceneaux failed to establish a question of fact as to
the amount she is indebted to Midland, which was shown to be in the amount of
$2,337.17.
For the reasons set forth in this opinion, the judgment of the trial court is
affirmed. Costs of this appeal are assessed to Africa Arceneaux.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2-16.3.