MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Kyle (Katherine) Wood Jeanine Kerridge Katherine J. Rybak Barnes & Thornburg LLP Indiana Legal Services, Inc. Indianapolis, Indiana Bloomington, Indiana ATTORNEYS FOR AMICUS CURIAE NOTRE DAME CLINICAL LAW CENTER Judith Fox Jun 30 2015, 7:05 am Jackson Garvey, Certified Legal Intern Notre Dame Clinical Law Center South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
Theodore Miller, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 82A04-1412-SC-598
v. Appeal from the Vanderburgh Superior Court The Honorable J. August Straus, LVNV Funding LLC, Magistrate Appellee-Plaintiff Trial Court Cause No. 82D06-1403- SC-2891
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 1 of 7 Case Summary [1] In 2005, Appellant-Defendant Theodore Miller obtained a Walmart credit card,
with the credit account being owned by General Electric Capital Corporation.
Miller last made a payment on the account in 2009, leaving an unpaid balance
of approximately $1500. At some point, the debt was acquired by Appellee-
Plaintiff LVNV Funding LLC, who sued Miller to collect. During the hearing
in this small-claims action, the trial court took judicial notice of an affidavit of
debt attached to LVNV’s complaint and entered judgment in LVNV’s favor.
Miller contends that LVNV failed to produce sufficient evidence to sustain the
trial court’s judgment and that the trial court abused its discretion in basing its
judgment on allegedly improper hearsay evidence. We affirm.
Facts and Procedural History [2] On January 20, 2005, Miller obtained a Walmart credit card issued by General
Electric Capital. Miller last made a payment on the Walmart card on
September 25, 2009, leaving an unpaid balance of $1509.97. On March 14,
2014, LVNV filed a notice of claim in small-claims court to collect the debt. On
October 28, 2014, the trial court held a hearing on the matter, taking judicial
notice of an affidavit of debt attached to LVNV’s notice of claim, which
provided as follows:
AFFIDAVIT OF DEBT Comes now affiant, and states:
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 2 of 7 1. I, Tobie Griffin, am an employee of Resurgent Capital Services, LP, servicing agent for Plaintiff, and I am authorized to make this affidavit. 2. I am of adult age and am fully authorized by Plaintiff to make the following representations which are true according to documents kept in the normal course of Plaintiff’s business and/or my personal knowledge. I am familiar with the recordkeeping practices of Plaintiff. 3. Plaintiff has obtained this debt from GE Money Bank and the original owner of this debt was General Electric Capital Corporation. 4. Theodore Miller, the Defendant, has an unpaid balance of $1,509.97 on account ************3475, plus interest at a rate of 0.00% from 5/2/2010. This account was opened on 1/20/2005. The last payment from Defendant was received on 9/25/2009. 5. The account which is the subject of the Complaint is a credit account. 6. This account balance includes: a. Late fees in the amount of $ 0.00 accruing from 5/2/2010. b. Interest at a rate of 0.00% beginning from 5/2/2010. c. Plaintiff is not seeking attorney’s fees. 7. Plaintiff believes that Defendant is not a minor or an incompetent individual. I swear or affirm under the penalties of perjury that the foregoing representations are true. Appellant’s App. p. 15.
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 3 of 7 [3] At the conclusion of the hearing, the trial court entered judgment in favor of
LVNV for $1509.97 plus court costs. On November 26, 2014, Miller filed a
motion to correct error, which the trial court denied on December 2, 2014.
Discussion and Decision [4] Miller is appealing from a judgment in a small claims action, and we therefore
employ the following standard of review:
Judgments in small claims actions are “subject to review as prescribed by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate review of facts determined in a bench trial with due regard given to the opportunity of the trial court to assess witness credibility. This “deferential standard of review is particularly important in small claims actions, where trials are ‘informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.’” City of Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting S.C.R. 8(A)). But this deferential standard does not apply to the substantive rules of law, which are reviewed de novo just as they are in appeals from a court of general jurisdiction. Lae v. Householder, 789 N.E.2d 481, 483 (Ind. 2003). Similarly, where a small claims case turns solely on documentary evidence, we review de novo, just as we review summary judgment rulings and other “paper records.” See Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002) (reviewing the trial court’s decision de novo after a bench trial where the parties relied on documentary evidence); Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 531 (Ind. 2006) (“To the extent the evidence the parties offered is admissible, it is documentary .... our standard of review is de novo.”) Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067-68 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 4 of 7 I. Sufficiency of the Evidence [5] Miller first contends that the affidavit of debt noticed by the trial court is
insufficient to establish that LVNV actually owned the debt at issue. In small
claims actions,
A judgment in favor of a party having the burden of proof will be affirmed if the evidence was such that a reasonable trier of fact could conclude that the elements of the claim were established by a preponderance of the evidence. This court gives due deference to the trial court’s opportunity to judge the credibility of the witnesses, does not reweigh the evidence, and considers only the evidence and reasonable inferences therefrom that support the trial court’s judgment. Fortner v. Farm Valley-Applewood Apts., 898 N.E.2d 393, 398 (Ind. Ct. App. 2008)
(citations omitted).
[6] As previously mentioned, LVNV submitted an affidavit of debt with its notice
of complaint, which was required in this case. See Indiana Small Claims Rule
2(B) (“The notice of claim shall contain … [a] brief statement of the nature and
amount of the claim; and … if the claim is on an account, an Affidavit of Debt,
in a form substantially similar to Small Claims Appendix A shall be
attached[.]”).
[7] Miller claims that the following passage of the affidavit of debt is insufficient to
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Kyle (Katherine) Wood Jeanine Kerridge Katherine J. Rybak Barnes & Thornburg LLP Indiana Legal Services, Inc. Indianapolis, Indiana Bloomington, Indiana ATTORNEYS FOR AMICUS CURIAE NOTRE DAME CLINICAL LAW CENTER Judith Fox Jun 30 2015, 7:05 am Jackson Garvey, Certified Legal Intern Notre Dame Clinical Law Center South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
Theodore Miller, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 82A04-1412-SC-598
v. Appeal from the Vanderburgh Superior Court The Honorable J. August Straus, LVNV Funding LLC, Magistrate Appellee-Plaintiff Trial Court Cause No. 82D06-1403- SC-2891
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 1 of 7 Case Summary [1] In 2005, Appellant-Defendant Theodore Miller obtained a Walmart credit card,
with the credit account being owned by General Electric Capital Corporation.
Miller last made a payment on the account in 2009, leaving an unpaid balance
of approximately $1500. At some point, the debt was acquired by Appellee-
Plaintiff LVNV Funding LLC, who sued Miller to collect. During the hearing
in this small-claims action, the trial court took judicial notice of an affidavit of
debt attached to LVNV’s complaint and entered judgment in LVNV’s favor.
Miller contends that LVNV failed to produce sufficient evidence to sustain the
trial court’s judgment and that the trial court abused its discretion in basing its
judgment on allegedly improper hearsay evidence. We affirm.
Facts and Procedural History [2] On January 20, 2005, Miller obtained a Walmart credit card issued by General
Electric Capital. Miller last made a payment on the Walmart card on
September 25, 2009, leaving an unpaid balance of $1509.97. On March 14,
2014, LVNV filed a notice of claim in small-claims court to collect the debt. On
October 28, 2014, the trial court held a hearing on the matter, taking judicial
notice of an affidavit of debt attached to LVNV’s notice of claim, which
provided as follows:
AFFIDAVIT OF DEBT Comes now affiant, and states:
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 2 of 7 1. I, Tobie Griffin, am an employee of Resurgent Capital Services, LP, servicing agent for Plaintiff, and I am authorized to make this affidavit. 2. I am of adult age and am fully authorized by Plaintiff to make the following representations which are true according to documents kept in the normal course of Plaintiff’s business and/or my personal knowledge. I am familiar with the recordkeeping practices of Plaintiff. 3. Plaintiff has obtained this debt from GE Money Bank and the original owner of this debt was General Electric Capital Corporation. 4. Theodore Miller, the Defendant, has an unpaid balance of $1,509.97 on account ************3475, plus interest at a rate of 0.00% from 5/2/2010. This account was opened on 1/20/2005. The last payment from Defendant was received on 9/25/2009. 5. The account which is the subject of the Complaint is a credit account. 6. This account balance includes: a. Late fees in the amount of $ 0.00 accruing from 5/2/2010. b. Interest at a rate of 0.00% beginning from 5/2/2010. c. Plaintiff is not seeking attorney’s fees. 7. Plaintiff believes that Defendant is not a minor or an incompetent individual. I swear or affirm under the penalties of perjury that the foregoing representations are true. Appellant’s App. p. 15.
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 3 of 7 [3] At the conclusion of the hearing, the trial court entered judgment in favor of
LVNV for $1509.97 plus court costs. On November 26, 2014, Miller filed a
motion to correct error, which the trial court denied on December 2, 2014.
Discussion and Decision [4] Miller is appealing from a judgment in a small claims action, and we therefore
employ the following standard of review:
Judgments in small claims actions are “subject to review as prescribed by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate review of facts determined in a bench trial with due regard given to the opportunity of the trial court to assess witness credibility. This “deferential standard of review is particularly important in small claims actions, where trials are ‘informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.’” City of Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting S.C.R. 8(A)). But this deferential standard does not apply to the substantive rules of law, which are reviewed de novo just as they are in appeals from a court of general jurisdiction. Lae v. Householder, 789 N.E.2d 481, 483 (Ind. 2003). Similarly, where a small claims case turns solely on documentary evidence, we review de novo, just as we review summary judgment rulings and other “paper records.” See Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002) (reviewing the trial court’s decision de novo after a bench trial where the parties relied on documentary evidence); Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 531 (Ind. 2006) (“To the extent the evidence the parties offered is admissible, it is documentary .... our standard of review is de novo.”) Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067-68 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 4 of 7 I. Sufficiency of the Evidence [5] Miller first contends that the affidavit of debt noticed by the trial court is
insufficient to establish that LVNV actually owned the debt at issue. In small
claims actions,
A judgment in favor of a party having the burden of proof will be affirmed if the evidence was such that a reasonable trier of fact could conclude that the elements of the claim were established by a preponderance of the evidence. This court gives due deference to the trial court’s opportunity to judge the credibility of the witnesses, does not reweigh the evidence, and considers only the evidence and reasonable inferences therefrom that support the trial court’s judgment. Fortner v. Farm Valley-Applewood Apts., 898 N.E.2d 393, 398 (Ind. Ct. App. 2008)
(citations omitted).
[6] As previously mentioned, LVNV submitted an affidavit of debt with its notice
of complaint, which was required in this case. See Indiana Small Claims Rule
2(B) (“The notice of claim shall contain … [a] brief statement of the nature and
amount of the claim; and … if the claim is on an account, an Affidavit of Debt,
in a form substantially similar to Small Claims Appendix A shall be
attached[.]”).
[7] Miller claims that the following passage of the affidavit of debt is insufficient to
establish that it owned Miller’s debt: “Plaintiff has obtained this debt from GE
Money Bank and the original owner of this debt was General Electric Capital
Corporation.” Appellant’s App. p. 15. We disagree. Miller takes issue with
what he argues is the insufficient (1) foundation for the affiant’s knowledge and Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 5 of 7 (2) evidence of valid assignments of the debt from General Electric Capital to
GE Money Bank and then to LVNV. The affidavit, however, contains an
unequivocal statement that LVNV owns the debt, a statement based on the
affiant’s personal knowledge and LVNV’s records, with which Griffin avers to
be familiar. Moreover, as LVNV points out and Miller concedes, Griffin’s
affidavit conformed to the sample affidavit provided in Small Claims Appendix
A. The trial court was entitled to credit Griffin’s affidavit and did so. Miller is
essentially arguing that LVNV should have had to prove more than the Small
Claims Rules require. Miller, however, points to no authority that any more
evidence than a properly-executed affidavit of debt is required in a small claims
proceeding, and we are aware of none. Miller’s argument, in the end, is
nothing more than an invitation to reweigh the evidence (or substantially
rewrite the Small Claims Rules), which we will not do.
II. Hearsay [8] Miller also contends that the trial court should not have been able to rely on the
affidavit of debt, even if nominally sufficient to prove LVNV’s claim, because it
was based on hearsay containing legal conclusions regarding the elements of
that claim. Again, as Miller acknowledges, Small Claims Rule 8(A) provides
that
[t]he trial shall be informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law, and shall not be bound by the statutory provisions or rules of practice, procedure, pleadings or evidence
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 6 of 7 except provisions relating to privileged communications and offers of compromise. (Emphasis added). So, prohibitions against the use of hearsay simply do not
apply in small claims proceedings. A further Miller acknowledgment is that the
Indiana Supreme Court has upheld a small claims judgment based solely on
hearsay by a non-party affiant. See Matusky v. Sheffield Square Apts., 654 N.E.2d
740, 742 (Ind. 1995). Miller, however, contends that we should carve out an
exception for “hearsay statements that assert nothing more than the elements of
a claim without factual support[,]” arguing that allowing such statements
“opens the door to unscrupulous plaintiffs to pursue claims to which they have
no legal right.” Appellant’s Br. p. 15. In the end, though, Miller provides no
relevant legal authority to support the creation of such an exception, and we are
aware of none. The Small Claims Rules allow the use of hearsay, and that is
that. The trial court did not abuse its discretion in basing its judgment on the
evidence contained in Griffin’s affidavit.
[9] The judgment of the trial court is affirmed.
Vaidik, C.J., and, Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A04-1412-SC-598 | June 30, 2015 Page 7 of 7